# M/S Pepsico India Holdings Pvt. Ltd. & Ors v. Suresh Chandra Yadav & Ors

- **Citation:** (2023) 12 ILRA 867
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-12-22
- **Case number:** Writ-C No. 1002593 of 2011
- **Bench:** Rajnish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-pepsico-india-holdings-pvt-ltd-ors-v-suresh-chandra-yadav-ors-49556
- **Pages:** 14

## Headnote

Civil Law - Constitution of India,1950 -
Article 226 - U.P. Industrial Disputes Act,
1947 - Sections 2(z), 4-K, 11-A -
Industrial Tribunal and Labour Court
Rules, 1967 - Rule 2(b) - Indian Evidence
Act, 1872 - Sections 61, 65, 67 & 73 -
Termination of Service - Workman Status -
Validity of Reference - Proof of Termination
Letter - Back Wages

The petitioners, M/S Pepsico India Holdings Pvt.
Ltd., challenged the Industrial Tribunal's award
dated 26.08.2010 (published 01.12.2010), which
held the termination of respondent no.1, Suresh
Chandra Yadav, as a Service Engineer w.e.f.
05.06.2001
to
be
invalid
and
granted
reinSt.ment
with
full
back
wages.
The
petitioners argued that the reference by the
Deputy Labour Commissioner was without
jurisdiction, the respondent was not a workman
due to supervisory duties, the termination was
validly executed via a letter dated 16.07.2001
with three months' salary in lieu of notice, and
the
Tribunal's
findings
on
forged
acknowledgment
and
unpaid
salary
were
perverse. Held: (1) The writ petition was
dismissed as lacking merit. (2) The reference by
the Deputy Labour Commissioner was valid
under delegated powers vide Government
Notification No. 251(HI)/XXXVI-2-155(SM)/90
dated 29.08.1990, per Section 11-A of the U.P.
Industrial Disputes Act, 1947, as upheld in St. of
U.P. Vs Labour Court, Varanasi. (3) The
respondent was a workman under Section 2(z),
as the petitioners failed to prove supervisory
duties with cogent evidence, and the Tribunal
correctly held that his technical duties as a
Service Engineer were not supervisory, per
Sonepat Cooperative Sugar Mills Ltd. Vs Ajit
Singh and Anand Regional Cooperative Oil Seeds
Growers Union Ltd. Vs Shailesh Kumar Harshad
Bhai Shah. (4) The Tribunal's finding that the
termination occurred orally on 05.06.2001, not
via the alleged letter dated 16.07.2001, was
upheld, as the petitioners failed to prove service
of the letter with primary evidence, and the
acknowledgment's authenticity was doubtful,
per Neeraj Dutta Vs St. (Govt. of N.C.T. of
Delhi). (5) The plea of termination via the
16.07.2001 letter, raised only in 2006, was
suspicious, especially as it was not pleaded in
2002 or used to challenge the reference, and
was admissible under Rule 2(b) of the 1967
Rules but lacked evidential support. (6) Full
back wages were justified, as the petitioners
868 INDIAN LAW REPORTS ALLAHABAD SERIES
failed to prove gainful employment of the
respondent post-termination, per U.P.S.R.T.C. Vs
Rizwan Nabi Siddiqui and Armed Forces ExOfficers Multi Services Cooperative Society Ltd.
Vs Rashtriya Majdoor Sangh. (7) The High
Court, under Article 226, does not act as an
appellate court and found no illegality in the
Tribunal's reasoned award, per M/S Pepsico
India Holdings Pvt. Ltd. Vs Krishna Kant Pandey.

Case Law cited:

## Text

_Characters 0–39,935 of 46,205. This is a partial read: ask again with offset=39935 for what follows._

12 All. M/S Pepsico India Holdings Pvt. Ltd. & Ors. Vs. Suresh Chandra Yadav & Ors.
867
to period already undergone. Revisionist has
already undergone sentence awarded for
charge under section 323 IPC, therefore, he is
liable to be released from jail after depositing
amount of fine for charge under sections 498A, 323 IPC or suffering default sentence, as
the case may be. In case of failure to deposit
the amount he will serve default sentence for
these offence in accordance with law.

37. The instant revision is partly
allowed accordingly.

38. The revisionist will be released
from jail custody in accordance with law in
terms of this judgement, if he is not wanted
in any other case.

39. Let a copy of this order be
forwarded
to
C.J.M.,
Ghaziabad
for
intimation to jail authority for compliance.
----------
(2023) 12 ILRA 867
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 22.12.2023

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

Writ-C No. 1002593 of 2011

M/S Pepsico India Holdings Pvt. Ltd. &
Ors. ...Petitioners
Versus
Suresh Chandra Yadav & Ors.
 ...Respondents

Counsel for the Petitioners:
Vikas Singh

Counsel for the Respondents:
C.S.C., Amar Nath Tripathi, Manoj Kumar
Sahu

Civil Law - Constitution of India,1950 -
Article 226 - U.P. Industrial Disputes Act,
1947 - Sections 2(z), 4-K, 11-A -
Industrial Tribunal and Labour Court
Rules, 1967 - Rule 2(b) - Indian Evidence
Act, 1872 - Sections 61, 65, 67 & 73 -
Termination of Service - Workman Status -
Validity of Reference - Proof of Termination
Letter - Back Wages

The petitioners, M/S Pepsico India Holdings Pvt.
Ltd., challenged the Industrial Tribunal's award
dated 26.08.2010 (published 01.12.2010), which
held the termination of respondent no.1, Suresh
Chandra Yadav, as a Service Engineer w.e.f.
05.06.2001
to
be
invalid
and
granted
reinSt.ment
with
full
back
wages.
The
petitioners argued that the reference by the
Deputy Labour Commissioner was without
jurisdiction, the respondent was not a workman
due to supervisory duties, the termination was
validly executed via a letter dated 16.07.2001
with three months' salary in lieu of notice, and
the
Tribunal's
findings
on
forged
acknowledgment
and
unpaid
salary
were
perverse. Held: (1) The writ petition was
dismissed as lacking merit. (2) The reference by
the Deputy Labour Commissioner was valid
under delegated powers vide Government
Notification No. 251(HI)/XXXVI-2-155(SM)/90
dated 29.08.1990, per Section 11-A of the U.P.
Industrial Disputes Act, 1947, as upheld in St. of
U.P. Vs Labour Court, Varanasi. (3) The
respondent was a workman under Section 2(z),
as the petitioners failed to prove supervisory
duties with cogent evidence, and the Tribunal
correctly held that his technical duties as a
Service Engineer were not supervisory, per
Sonepat Cooperative Sugar Mills Ltd. Vs Ajit
Singh and Anand Regional Cooperative Oil Seeds
Growers Union Ltd. Vs Shailesh Kumar Harshad
Bhai Shah. (4) The Tribunal's finding that the
termination occurred orally on 05.06.2001, not
via the alleged letter dated 16.07.2001, was
upheld, as the petitioners failed to prove service
of the letter with primary evidence, and the
acknowledgment's authenticity was doubtful,
per Neeraj Dutta Vs St. (Govt. of N.C.T. of
Delhi). (5) The plea of termination via the
16.07.2001 letter, raised only in 2006, was
suspicious, especially as it was not pleaded in
2002 or used to challenge the reference, and
was admissible under Rule 2(b) of the 1967
Rules but lacked evidential support. (6) Full
back wages were justified, as the petitioners
868 INDIAN LAW REPORTS ALLAHABAD SERIES
failed to prove gainful employment of the
respondent post-termination, per U.P.S.R.T.C. Vs
Rizwan Nabi Siddiqui and Armed Forces ExOfficers Multi Services Cooperative Society Ltd.
Vs Rashtriya Majdoor Sangh. (7) The High
Court, under Article 226, does not act as an
appellate court and found no illegality in the
Tribunal's reasoned award, per M/S Pepsico
India Holdings Pvt. Ltd. Vs Krishna Kant Pandey.

Case Law cited:

1. St. of U.P. & anr. Vs Labour Court, Varanasi &
anr., 2005 (106) FLR 506

2. U.P. St. Sugar Corporation Ltd. Vs The Deputy
Labour Commissioner, Meerut & ors., 1990 (60)
FLR 97

3. M/S Star Paper Mills Ltd. Vs Labour Court,
Dehradun & ors., 2005 (105) FLR 479

(Delivered by Hon'ble Rajnish Kumar, J.)

1. Heard Shri Vikas Singh, learned
counsel for the petitioners, Shri Amar Nath
Tripathi, learned counsel for respondent
no.1. Learned Standing Counsel is present
for State-respondents.

2. By means of the present writ
petition
under
Article
226
of
the
Constitution of India the petitioners have
approached this Court assailing the award
dated 26.08.2011 published on notice board
on 01.12.2010 passed by the Presiding
Officer, Industrial Tribunal (2), U.P.
Lucknow (here-in-after referred as the
Tribunal) / respondent no.2.

3. The brief facts of the case, for
adjudication of the present controversy, are
that the respondent no.1 was appointed on the
post of Service Engineer by the petitioners on
01.04.1998. His services were terminated.
The conciliation proceedings were held
between the petitioners and the respondent
no.1, in Case No.249 of 2001 but on account
of failure of the conciliation proceedings,
reference was made by the Deputy Labour
Commissioner, Lucknow Region, Lucknow /
respondent no.3 to decide as to whether the
termination of the service of the respondent
no.1 from the post of Service Engineer w.e.f.
05.06.2001 was right or not and if not, to
what relief the respondent no.1 was entitled
from the petitioners. In pursuance to the
reference made by the respondent no.3,
Adjudication Case No.304 of 2001 was
registered before the respondent no.2. The
respondent no.2, after the written statements
and the rejoinder affidavits filed by the
petitioners and the respondent no.1 and the
evidence by the parties, passed the award on
26.08.2010,
which
was
published
on
01.12.2010. Being aggrieved by the same,
instant petition has been filed, challenging the
same.

4. Learned counsel for the petitioners
submitted that the Government has power to
refer the dispute under Section 4(K) of the
Industrial Disputes Act, 1947 (here-in-after
referred to as the Act 1947) and not the
Deputy Labour Commissioner, Lucknow
Region, Lucknow. He further submitted that
the respondent no.1 is not a workman as he
was appointed under the supervisory capacity
and discharging the duties as such. Learned
counsel for the petitioners had also submitted
that the respondent no.1 has not disclosed his
duties. The duties of respondent no.1 were
disclosed by the petitioners in their written
statement, which were not specifically
denied, rather they were admitted in his
evidence by the respondent no.1. The duties
of the respondent no.1 discloses that his work
was supervisory in nature, therefore he was
not a workman, thus he could not have been
held a workman.

5. He further submitted that the
services of the respondent no.1 were
12 All. M/S Pepsico India Holdings Pvt. Ltd. & Ors. Vs. Suresh Chandra Yadav & Ors.
869
terminated by means of the order dated
16.07.2001
in
accordance
with
the
appointment order with immediate effect
with three months salary in lieu of notice,
which was communicated to the respondent
no.1, therefore, even if, he could have been
held a workman, the order of termination
was made in terms of the appointment
order, therefore there was no illegality or
error in it. But without considering it, the
Tribunal has recorded a finding that the
services of the respondent no.1 were
terminated on 05.06.2001.

6. He further submitted that the
Tribunal has recorded an erroneous and
perverse finding that the termination order
had not been sent, whereas once a
document
regarding
service
i.e.
acknowledgment is exhibited, no such
finding could have been recorded. He
further submitted that the evidence can be
adduced only in regard to the pleadings and
if the pleadings have not been made,
neither any evidence can be adduced in
regard to the same nor any evidence
adduced against the pleadings can be read
but the Tribunal recorded a finding of
forged document without any pleadings. He
further submitted that there is no pleading
that the salary was paid only up to
31.05.2001.

7. On the basis of above, learned
counsel for the petitioners submitted that
the impugned award dated 26.04.2010 is
not sustainable in the eyes of law and liable
to be quashed.

8. Learned counsel for the petitioners
relied on Jaspal Kaur Cheema Vs. M/S.
Industrial Trade Links and Others etc.;
2017 (8) SCC 592/ 2017 Law Suit SC 658,
C.
Gupta
Vs.
Glaxosmithklin
Pharmaceutical Ltd; 2007 (114) FLR
585, Rajneesh Khajuria Vs. Wockhardt
Ltd. and Another; (2020) 3 SCC 86,
Sultan Suleman Qureshi Vs. Mrs. Anisa
Rafiq Charolia and Others; 2016 SCC
OnLine Bom 9798, Aktiebolaget Volvo
Vs. R. Venkatachalam; 2009 LawSuit
(Del) 1395, General Manager, Electrical
Rengali Hydro Electric Project, Orissa
and Others Vs. Giridhari Sahu and
Others; (2009) 10 SCC 695 and National
Textile
Corp.Ltd
Vs.
Nareshkumar
Badrikumar Jagad & Others; 2011 (29)
LCD 793.

9. Learned counsel for the respondent
no.1 submitted that the reference was
rightly made in accordance with law by the
Deputy Labour Commissioner, Lucknow
Region, Lucknow because the powers were
delegated by the Government to him vide
Government Notification No.251 (HI) /
XXXVI-2-155 (SM) dated 29.08.1990
issued by the Shram Anubhag-2, which is
referred in the reference itself, therefore the
submission of learned counsel for the
petitioners is not sustainable and liable to
be rejected.

10. He further submitted that the
respondent
no.1
was
appointed
on
01.04.1998 on the post of Service Engineer
as
workman
and
his
services
were
confirmed
on
01.01.1999.
As
per
appointment letter three months notice was
required for termination of services but the
service of the respondent no.1 was
terminated orally on 05.06.2001 and
thereafter he was not allowed to work,
therefore a notice dated 07.06.2001 was
given by the respondent no.1 but no reply
to the same was given by the petitioners.
The alleged duties disclosed in the written
statement by the petitioners have not been
proved by the petitioners by any cogent
evidence. The respondent no.1 denied the
870 INDIAN LAW REPORTS ALLAHABAD SERIES
duties and it has been admitted by the
witness of the petitioners that the duties are
not in the appointment order. The witness
has also admitted that he has not seen the
duties in any rule. Further submission of
learned counsel for the respondent no.1 was
that the duties of the petitioners were
technical
and
the
petitioner
was
a
workman, therefore the benefit of subsection (iv) of Section-2 (z) of the Act 1947
is not available to the petitioners.

11. He further submitted that the
reference was made with regard to
termination of services w.e.f. 05.06.2001
and in the written statement filed in June,
2002 it was not pleaded that the services of
the respondent no.1 were terminated vide
letter dated 16.07.2001 and it was disclosed
in the subsequent objection filed on 21st
August, 2006, but neither the reference was
got amended or challenged on this ground
nor the subsequent objection could have
been
considered
because
only
an
application in the nature of a claim, counter
claim, complaint and/ or written statement
are part of 'pleadings' as per Rule 2(b) of
the Industrial Tribunal and Labour Court
Rules, 1967. In regard to it learned counsel
for the petitioners pointed out that in June,
2002 only preliminary objection was filed,
keeping reserved the right of filing written
statement and accordingly the written
statement was filed subsequently, therefore
the contention of learned counsel for the
respondent no.1 is misconceived and not
tenable in the eyes of law.

12. He further submitted that the
documents are filed after filing of the
pleadings, so no pleadings are required on
the documents and the contents of the
documents / exhibits are to be proved by
evidence. Since the petitioners have failed
to prove the service of the alleged order
and the acknowledgment, therefore, the
finding in this regard does not suffer from
any illegality or error.

13. He further submitted that it has
been admitted by the witness of the
petitioners that no proof of the work /
duties of the Service Engineer has been
filed by him. He also submitted that the
duties of the respondent no.1 as Service
Engineer were not supervisory in nature
and the petitioners have also failed to prove
the same, therefore, there is no illegality or
error in the impugned award and the writ
petition has been filed on misconceived and
baseless grounds, which is liable to be
dismissed with cost.

14.

Learned
counsel
for
the
respondent no.1 relied on State of U.P.
and
Another
Vs.
Labour
Court,
Varanasi and Another; 2005 (106) FLR
506, C. Gupta Vs. Glaxo Smith Klin
Pharmaceutical Ltd; 2007 (114) FLR
585, M/S U.P. State Sugar Corporation
Ltd.
Vs.
The
Deputy
Labour
Commissioner,
Meerut
and
Others;
1990(60) FLR 97, M/S Star Paper Mills
Ltd. Vs. Labour Court, Dehradun and
Others; 2005 (105) FLR 479, Anand
Regional Cooperative Oil Seeds Growers
Union Ltd Vs. Shailesh Kumar Harshad
Bhai Shah; 2006 (111) FLR 581, M/S
Pepsico India Holdings Pvt. Ltd. Vs.
Krishna Kant Pandey; 2015 (144) FLR
607, Armed Forces Ex-Officers Multi
Services Cooperative Society Ltd. Vs.
Rashtriya Majdoor Sangh (INTUC),
2022 (175) FLR 544 and Uttar Pradesh
State Road Transport Cooperation and
Another Vs. Shri Rizwan Nabi Siddiqui
and Others; 2022 (40) LCD 205.

15. I have considered the submissions
of learned counsel for the parties, pleadings
12 All. M/S Pepsico India Holdings Pvt. Ltd. & Ors. Vs. Suresh Chandra Yadav & Ors.
871
and documents on record of the instant case
.

16. The respondent no.1 was
appointed on the post of Service Engineer
on
01.04.1998.
His
services
were
confirmed
on
01.01.1999.
As
per
confirmation letter the services with the
company may be terminated at any time by
either party by giving three months notice
or three months salary in lieu thereof. As
claimed by the respondent no.1, he was not
allowed
to
work
w.e.f.
05.06.2001,
therefore his services were terminated w.e.f
the said date. He gave a notice dated
07.06.2001 but no reply was given by the
petitioners. The conciliation proceedings
were held between the petitioners and the
respondent no.1, but on account of failure
of the same, a reference was made on
27.10.2001
by
the
Deputy
Labour
Commissioner, Lucknow Region, Lucknow
to the Tribunal to decide as to whether the
termination
of
the
services
of
the
respondent no.1 from the post of Service
Engineer w.e.f. 05.06.2001 was valid or not
and if not, to what relief the respondent
no.1 was entitled from the employers i.e.
the petitioners and under which head with
the details. After receipt of the reference,
the notices were issued to the parties by the
Tribunal.
The
petitioners
and
the
respondent no.1 appeared before the
Tribunal and written statements / additional
written statements and rejoinder affidavits
were
filed
by
the parties
and
the
documentary evidences were filed by the
parties. Thereafter, the respondent no.1 got
himself examined in oral evidence as
WW1. The petitioners produced Shri
Manoj Kumar Dwivedi as SW1 in
evidence. After considering the pleadings
of the parties, evidence and affording
opportunity of hearing, the Tribunal found
that two points arose for determination; (1)
whether Suresh Chandra Yadav is a
workman as defined under Section 2(z) of
the Act 1947 and (2) whether the services
of the Suresh Chandra Yadav were
terminated on 07.06.2001 as alleged by the
workman or on 16.07.2001 as alleged by
the employers and in either cases its effect.

17. The reference was made by the
Deputy Labour Commissioner, Lucknow
Region, Lucknow by means of the order
dated 27-10-2001 referring therein that the
reference
is
being
made
under
the
delegated powers of the Government by
means of the notification no. 25/3 (H.I.) 362-155 (S.M.)/90, dated 29.8.1990 of
Government of U.P., Shram Anubhag-2, a
copy of the said notification has been
produced by learned Counsel for the
respondent no. 1. The notification has been
issued stating therein that in exercise of the
power under Section 11-A of the U.P.
Industrial disputes Act, 1947 (U.P. Act
No.28 of 1947), the Governor is pleased to
direct that the powers exercisable by the
State Government under Section 4-K of the
said Act in relation to disputes regarding
dismissal, retrenchment or termination of
services of an individual workman as
contemplated under Section 2-A of the said
Act shall be exercisable also by the officers
mentioned in column 2, within the area
mentioned against their names in column 3
of the schedule given in the said
notification.

18. The Column no.2 of the aforesaid
notification provides the name of the
officer and Column 3 jurisdiction. Sr.
No.15 of the list provides Deputy Labour
Commissioner, Lucknow Region, Lucknow
in column 2 and Lucknow, Bahraich,
Barabanki, Gonda and Sultanpur districts in
Column 3. The instant case relates to
Lucknow district, as such it is covered
872 INDIAN LAW REPORTS ALLAHABAD SERIES
under Sl. No.15 of the notification.
Therefore this court is of the view that
reference was rightly made by the Deputy
Labour Commissioner, Lucknow Region,
Lucknow in accordance with law and
within it's jurisdiction and there is no
illegality or error in it.

19. A coordinate bench of this Court
also considered the issue in the case of
State of U.P. and Another Vs. Labour
Court, Varanasi and Another (Supra)
and held that Section 11-A of the Act
empowers the Government to delegate any
of its powers under the Act to subordinate
officers and the State Government has
delegated
its
power
under
the
said
provision for making a reference under
Section 4(K) of the Act vide Government
Notification No.251 (HI) / XXXVI-2-155
(SM) dated 29.08.1990 issued by the
Shram Anubhag-2. Thus, the argument of
the learned counsel for the petitioners that
the reference is without jurisdiction has no
force and is hereby repelled.

20. The next argument of learned
counsel for the petitioner was that the
respondent no.1 is not a workman. To
consider this issue, the definition of
workman as given in Section 2(z) of the
U.P. Industrial Disputes Act would be
relevant, which is reproduced as under:-

"2(z)
'Workman'
means
any
person (including apprentice) employed in
any industry to do any skilled or unskilled
manual, supervisory, technical or clerical
work for hire or reward, whether the terms
of employment be express or implied, and
for the purposes of any proceeding under
this Act in relation to an industrial dispute,
includes any such person who has been
dismissed, discharged or retrenched in
connection with, or as a consequence of,
that dispute, or whose dismissal, discharge
or retrenchment has led to that dispute, but
does not include any such person -

(i) who is subject to any Army
Act, 1950 or the Air Force Act, 1950, or the
Navy (Discipline) Act, 1934; or

(ii) who is employed in the police
service or as an officer or other employee
of a prison; or

(iii) who is employed mainly in a
managerial or administrative capacity; or

(iv) who being employed in a
supervisory
capacity,
draws
wages
exceeding five hundred rupees per mensem
or exercises, either by the nature of the
duties attached to the office or by reason of
the powers vested in him, functions mainly
of a managerial nature."

21. From bare reading of the aforesaid
definition it is apparent that the designation
of
the
person
is
not
material
for
determination of point as to whether he is
workman or not and it is to be determined
on the basis of work being done by him.
The respondent no.1 was appointed by
means of the order dated 01.04.1998 by the
General Manager (Human Resources) of
M/S
Pepsi
Cola
India
(Marketing
Company) on the post of Service Engineer
on 01.04.1998 on probation for a period of
six months. His services were confirmed on
01.01.1999.

22. The contention of learned counsel
for the petitioners is that since the
respondent
no.1
was
working
in
supervisory capacity and drawing salary
more than Rs.500 per month, therefore he
can not be treated to be a workman under
the exception clause (iv) of Section 2(z).
12 All. M/S Pepsico India Holdings Pvt. Ltd. & Ors. Vs. Suresh Chandra Yadav & Ors.
873
On the other hand, learned counsel for the
respondent
no.1
submitted
that
the
respondent no.1 was neither assigned the
supervisory duty nor he was working in
supervisory capacity and his work as
Service Engineer was only manual work,
therefore, he has rightly been treated as
workman by the Tribunal.

23. The material placed on record and
the evidence adduced before the Tribunal
discloses that the duties of the petitioner
were neither mentioned in his appointment
order nor any documentary evidence has
been brought on record to show the duties
and responsibilities of the respondent
no.1 as Service Engineer. It was only in
written statement filed by the Pepsico
India Holdings Pvt. Ltd. (paper no.25-A)
that the duties and responsibilities of exservice Engineer were disclosed. The
written statement contained in annexure
no.8 to this petition mentions that just
before
the
termination
Mr.
Suresh
Chandra
Yadav
was
designated
as
Service Engineer and performing the
duties at Lucknow Warehouse of the
company
which
were
purely
of
supervisory nature and out of the said
duties, the few are as under:-

"Installation of m/c in proper
manner after Tech Survey

Supervise
and
guidance
to
assemble m/cs at ware house before
installation

Ensure weekly 4 p.m. / month /
machine

4 Sanitation /annum/machine

Allocation of Tech and PMX
coordinator for P. M./B. D./ Sanitation

Ensure to attend all the B/D
within one hour of receiving complaint.

Personally attend Major B/D.

Spare inventory management

Ensure quality of service by
conducting at least 10 random checks
/annum/ outlets.

A better system for controlling
the noof complaints and minimize response
time by checking work order on a weekly
basis.

Develop healthy relation with
customer by visiting at least 10 times all
the outlets/annum.

Developing PMX/VISI Tech for
better service result.

Developing at least 5 local
vendor for general Spares of F.PM/cs to
minimize cost and ensure quality spares."

24. In view of above, the respondent
no.1 was designated as Service Engineer
just before the termination but the date has
not been disclosed. Even otherwise so far
as the duties and responsibilities as
disclosed above are concerned, they have
not been proved by any cogent evidence.
The petitioners have sought to prove the
duties by adducing the evidence of EW1/Manoj Kumar Dwivedi, who has stated
that he was working on the post of Service
Engineer prior to respondent no.1, who had
worked with him for about ten days. The
work which was being done by him, was
being done by the respondent no.1. He has
further stated that he was doing the works
as disclosed in paragraph-1 of paper no.25A as Service Engineer. He has stated in his
874 INDIAN LAW REPORTS ALLAHABAD SERIES
cross examination that the aforesaid duties
were neither in his appointment order nor
in the appointment order of the respondent
no.1. His information of the aforesaid
duties and responsibilities is oral. Though
he stated that there is Employees Service
Rules but he has not stated that the said
duties and responsibilities are mentioned in
those Service Rules and any such service
Rule has also not been brought on record.
The perusal of the statement of Shri Manoj
Kumar Dwivedi indicates that he no where
states that the duties and responsibilities of
respondent no.1 were supervisory in nature.
On the other hand, the respondent no.1 had
appeared as DW-1 and he has categorically
stated in his statement that his work was
services of PMX, maintenance, installation,
pull outs, breakdown, attendance etc. In the
cross
examination
nothing
could
be
extracted by the petitioners to prove any
contrary
work
being
done
by
the
respondent no.1 or the said work and duties
were of supervisory nature.

25. In view of above, it is apparent
that neither there was any mention in the
appointment
letter
of
the
petitioners
regarding works, duties and responsibilities
of his post of Service Engineer nor any
documentary proof such as Service Rules
or any Circular etc. has been brought on
record
to
prove
the
duties
and
responsibilities of the respondent no.1 as
Service Engineer, therefore the petitioners
have failed to proof that the respondent
no.1 was working in supervisory capacity,
therefore he was not a workman. Thus the
petitioners are not entitled for any benefit
of Sub-section (iv) of Section 2(z) of the
U.P.
Industrial
Disputes
Act.
Even
otherwise, the said provision is not
applicable in case the person is employed
to do the technical work and not working in
supervisory capacity or managerial, thus
this Court is of the view that the findings
recorded in this regard by the Tribunal does
not suffer from any illegality or error.

26. The Hon'ble Supreme Court, in
the case of Sonepat Cooperative Sugar
Mills Ltd. Vs. Ajit Singh; (2005) 3 SCC
232, has held that the jurisdiction of the
Industrial Court to make an award in the
dispute would depend upon a finding as to
whether the concerned employee is a
workman or not. When such an issue is
raised, the same being a jurisdictional one,
the findings of the Labour Court in that
behalf would be subject to judicial review.

27. A coordinate Bench of this Court,
in
the
case
of
U.P.
State
Sugar
Corporation
Ltd.
Vs.
The
Deputy
Labour Commissioner, Meerut And
Others, 1990(60) FLR 97, has held that if
a person alleged to be working in
supervisory category but did not allocate
job to the workman, and has no power to
sanction leave to any of the workmen
working under him nor did he exercise any
disciplinary control over the workmen, his
duties cannot be said to be of supervisory
nature. In the present case, the petitioners
have failed to prove any such duties of
supervisory nature being enterested upon
the respondent no.1.

28. A coordinate Bench of this Court,
in the case of M/S Star Paper Mills Ltd.
Vs.
Labour
Court
Dehradun
and
Others; 2005 (105) FLR 479, has held that
the
submission
of
counsel
for
the
petitioners that since the respondent No. 4
was recipient of more than Rs. 6000/- as
wages, he is not a workman within the
meaning of Section 2(z) of the U.P.
Industrial Disputes Act, 1947 cannot be
accepted and is irrelevant in view of his
nature of work which was not supervisory.
12 All. M/S Pepsico India Holdings Pvt. Ltd. & Ors. Vs. Suresh Chandra Yadav & Ors.
875
Similar is the case here in, in which the
petitioners have failed to prove any such
duties of the respondent no.1 of supervisory
in nature.

29. The Hon'ble Supreme Court, in
the case of Anand Regional Cooprative
Oil Seeds Growers Union Ltd Vs.
Shailesh Kumar Harshad Bhai Shah;
2006 (111) FLR 581, has held that for
determining the question as to whether a
person employed in an industry is a
workman or not; not only the nature of
work performed by him but also terms of
the appointment in the job performed are
relevant considerations. In the present case
the petitioners have failed to prove the
same. The relevant paragraphs 13 to 16 of
the judgment of Hon'ble Supreme Court are
extracted here-in-below:-

"13. For determining the question
as to whether a person employed in an
industry is a workman or not; not only the
nature of work performed by him but also
terms of the appointment in the job
performed are relevant considerations.

14.
Supervision
contemplates
direction and control. While determining
the nature of the work performed by an
employee, the essence of the matter should
call
for
consideration.
An
undue
importance need not be given for the
designation of an employee, or the name
assigned to, the class to which he belongs.
What is needed to be asked is as to what
are the primary duties he performs. For the
said purpose, it is necessary to prove that
there were some persons working under
him whose work is required to be
supervised. Being incharge of the section
alone and that too it being a small one and
relating to quality control would not
answer the test.

15. The precise question came up
for consideration in Ananda Bazar Patrika
(P) Ltd. v. Workmen [(1970) 3 SCC 248]
wherein it was held:

"The question, whether a person
is employed in a supervisory capacity or on
clerical work, in our opinion, depends upon
whether the main and principal duties
carried out by him are those of a
supervisory character, or of a nature
carried out by a clerk. If a person is mainly
doing supervisory work, but, incidentally or
for a fraction of the time, also does some
clerical work, it would have to be held that
he is employed in supervisory capacity;
and, conversely, if the main work done is of
clerical nature, the mere fact that some
supervisory duties are also carried out
incidentally or as a small fraction of the
work done by him will not convert his
employment as a clerk into one in
supervisory capacity"

16. A person indisputably carries
on supervisory work if he has power of
control or supervision in regard to
recruitment, promotion, etc. The work
involves
exercise
of
tact
and
independence."

30. Adverting to the question as to
whether
the
respondent
no.1
was
terminated on 05.06.2001 as alleged by him
or on 16.07.2001 as alleged by the
petitioners, this Court finds that the
respondent no.1 has alleged that he was
orally terminated on 05.06.2001, therefore
he had given a notice dated 07.06.2001 but
no reply was given. On the other hand, the
petitioners have submitted that the services
of the respondent no.1 were terminated by
means of the letter dated 16.07.2001. The
respondent no.1 has denied the receipt of
the said letter. Though it has been sought to
876 INDIAN LAW REPORTS ALLAHABAD SERIES
be proved by filing a photo copy of the
acknowledgment
and
adducing
the
evidence of SW-1/ Shri Manoj Kumar
Dwivedi, who proved the signature of Shri
Man Mohan Kalsi, General Manager (H.R.)
on the photo copy of the letter. He further
stated that this letter was sent by registered
post to the respondent no.1. Though he
tried to prove the acknowledgment but he
has no where stated that acknowledgment
bears the signature of the respondent no.1.
He could also not have proved the same
because he himself has stated in his
statement that he does not recognize the
signatures of the respondent no.1, whereas
if the respondent no.1 had worked with him
for about ten days and he had handed over
the charge to the respondent no.1, he must
have known to the signatures of the
respondent no.1. Therefore, this Court is of
the view that the learned Tribunal has
rightly recorded the findings that the
petitioners have failed to prove the service
of the termination order dated 16.07.2001
on the respondent no.1. The Tribunal has
made
observation
in
regard
to
the
signatures made on the acknowledgment on
the ground that the same is in Hindi,
whereas respondent no.1 has signed all the
pleadings in English, therefore it seems to
be forged. This Court is of the view that
merely because the findings have been
recorded by the Tribunal on the basis of the
document before it, the judgment passed by
the Tribunal will not vitiate on this alone.

31. The respondent no.1 had brought
on record the pay slips from the months of
January, 2001 to May, 2001 to show that he
was paid salary only upto 31.05.2001 but
no contrary evidence has been brought on
record to show that the respondent no.1
was paid any salary after 31.05.2001,
whereas his services are said to be
terminated by means of the letter dated
16.07.2001, therefore it is apparent that the
petitioners had orally terminated the
respondent no.1 on 05.06.2001 and after
receipt of the notice from the respondent
no.1, they prepared the termination letter
dated 16.07.2001, the service of which
could not be proved by the petitioners.
Even otherwise, it is apparent from the fact
that while filing the preliminary objection
in June, 2002 this plea was not taken that
the
petitioners
services
have
been
terminated by means of the letter dated
16.07.2001 and even the reference was not
got amended or challenged on this ground.
This plea has been taken only in the
objection filed on 21.08.2006.

32. The contention of learned counsel
for the respondent no.1 that since this plea
of termination by means of letter dated
16.07.2001 and it's service was not taken in
the written statement filed in June, 2002,
therefore any subsequent plea in any other
objection could not have been considered
in view of Rule 2(b) of the Industrial
Tribunal and Labour Court Rules of
Procedure, 1967 is concerned, the same is
misconceived and not tenable because
while filing the preliminary objection in
June, 2002 the right for filing the written
statement was kept reserved, if the
preliminary objection is rejected, therefore
it can not be said that the written statement
filed subsequently could not have been
considered and the learned Tribunal has
also made a point for determination
considering the same and decided it.
However, it is to be seen that the plea
which would have been taken at the first
instance in the preliminary objection was
not taken, therefore this itself creates doubt
about its veracity and being ante-dated or
prepared, particularly in the facts and
circumstances of the case, in which it and
it's service could also not be proved by
12 All. M/S Pepsico India Holdings Pvt. Ltd. & Ors. Vs. Suresh Chandra Yadav & Ors.
877
cogent evidence and the findings of the
Tribunal in this regard does not suffer from
any illegality or error.

33. The Hon'ble Supreme Court, in
the case of Jaspal Kaur Cheema vs M/S.
Industrial Trade Links and Others etc.;
2017 (8) SCC 592/ 2017 Law Suit SC 658,
has held that the failure to make specific
denial amounts to an admission. However
in the present case the respondent no.1 has
specifically denied the work and duties and
service of order which also could not be
proved by the petitioners by cogent
evidence.

34. Learned counsels for the
petitioner as well as the respondent no.1
have relied on the C. Gupta vs Glaxo
Smith Klin Pharmaceutical Limited;
2007 (114) FLR 585. Learned counsel
for the petitioners on the ground that
termination by means of the letter dated
16.07.2001 was made in terms of the
appointment
order,
therefore
the
petitioner can not be directed to be
reinstated but the petitioner has sought to
prove the issuance of termination letter
by acknowledgment of the registered post
but the same could not be proved as
discussed above and finding recorded by
the Tribunal, therefore the petitioners are
not entitled to any benefit from it. It is
also noticed that in the said judgment, the
Hon'ble Supreme Court has held that the
nomenclature is really not of any
consequence and whether a particular
employee comes within the definition of
workman has to be decided factually with
reference to various factual aspects and
the petitioner has failed to prove that the
work and duties of the respondent no.1
were supervisory in nature. It has also
been held that considering the nature of
work which is technical in nature the
appellant was a workman. The relevant
paragraph 16 is extracted here-in-below:-

"16. The amendment of the
expression 'workman' under Section 2(s)
clearly brought the appellant within the
ambit of the said expression. The
amendment was made on 21.8.1984 and
reference on 29.9.1995. According to
him, the date of reference is material,
even if it is conceded for the sake of
argument but not accepted that the unamended
provisions
apply,
yet
considering the nature of the work which
is technical in nature the appellant was a
workman. Further, it was not manual as
has been held by the High Court. Finally,
it was submitted that while exercising
jurisdiction under Article 142 of the
Constitution, the forum is really of no
consequence, if the termination is held to
be bad. The relief could be moulded
under Article 142 of the Constitution."

35. The Hon'ble Supreme Court in,
the case of Rajneesh Khajuria vs
Wockhardt Ltd. and Another; (2020) 3
SCC 86, has held that the order was issued,
as deposed by the employer witness and
even if, the employee has managed not to
receive the same, the termination order
does not become fake or in-genuine. This
Court is of the view that the petitioners are
not entitled for any benefit of it also and it
is distinguishable on the facts of the present
case because in the present case the
petitioners have failed to take the plea of
termination letter dated 16.07.2001at the
first instance, while filing the objection in
June, 2002 and this plea was taken in the
written statement filed on 21st August,
2006 and also failed to challenge the
reference
made
with
regard
to
the
termination w.e.f. 05.06.2001, which itself
creates issuance of the order on 16.07.2001
878 INDIAN LAW REPORTS ALLAHABAD SERIES
suspicious, particularly when it could not
be proved by cogent evidence as discussed
by the Tribunal and also discussed here-inabove.

36. Learned counsel for the petitioner
relied on the coordinate Bench judgment of
the High Court of Bombay in the case of
Sultan Suleman Qureshi Vs, Mrs. Anisa
Rafiq Charolia and Others; 2016 SCC
OnLine Bom 9798, in which it has been
held that once the documents are marked as
Exhibit, they cannot be de-exhibited.
However, this Court is of the view that
mere
production
and
marking
of
a
document as an exhibit by the court can not
be held to be due prove of its contents
without admissible evidence and so long as
an original document is in existence, its
contents must be proved by primary
evidence and it is only when the primary
evidence is lost, the secondary evidence
can be allowed. The petitioners have sought
to prove the document by filing a photo
copy but the original was not filed and it
was not the case that it has been lost,
therefore this Court is of the view that the
petitioners
have
failed
to
prove
in
accordance with law by cogent evidence.
The Hon'ble Supreme Court, in the case of
Neeraj Dutta vs State (Govt.Of N.C.T.Of
Delhi); (2023) 4 SCC 731 has held that an
exhibit by the Court must be proved by
primary evidence or by secondary evidence
and the primary evidence is the best
evidence and only if the primary evidence
is lost, in the interest of justice, the
secondary evidence must be allowed. It has
also been held that facts showing the
existence of any state of mind, such as
intention,
knowledge,
good
faith,
negligence, or ill will need not be proved
by direct testimony and it may be proved
inferentially from conduct, surrounding
circumstances, etc., therefore this Court is
of the view that the Tribunal has rightly
recorded the findings considering the same.
The relevant paragraphs 55 and 60 of the
aforesaid judgment of the Hon'ble Supreme
Court are extracted here-in-below:-

55. Documentary evidences, on
the other hand, are to be proved by the
production of the documents themselves or,
in their absence, by secondary evidence
under Section 65 of the Act. Further, facts
showing the existence of any state of mind,
such as intention, knowledge, good faith,
negligence, or ill will need not be proved
by direct testimony. It may be proved
inferentially from conduct, surrounding
circumstances, etc. (See Sections 8 and 14
of the Evidence Act.)

60. Section 61 deals with proof of
contents of documents which is by either
primary or by secondary evidence. When a
document is produced as primary evidence,
it will have to be proved in the manner laid
down in Sections 67 to 73 of the Evidence
Act.