Shiv Narayan Dhingra, J.
1. By this writ petition, the petitioner has challenged the validity of award dated 20.1.2004 passed by Industrial Tribunal I, directing the payment of 50% back wages to the petitioner from 15.2.1988 till 30th September, 2001 i.e. date of reference and 100% wages from 1.10.2001 till July, 2002.
2. Briefly, the facts are that the respondent was employed as a foreman by the Public Enterprises Services Association( in short 'the PESA') on 16th July, 1985. His initial appointment was for a period of three months on ad hoc basis. PESA was a body created for monitoring, construction and completion of twin towers project of an office complex, sought to be constructed for housing various public sector undertakings under one roof for effective coordination between various public sector undertakings. PESA was a baby of the petitioner itself and created with the object of construction of twin towers in Laxmi Nagar. A lot of irregularities were detected in the working of PESA by CBI and on recommendation of the government, PESA was dissolved on 3.7.1987 and its assets and liabilities were transferred to the petitioner. The petitioner assigned the work of construction to other agencies. The respondent was employed by PESA as foreman for the construction work. After dissolution of PESA, all employees of PESA were tried to be adjusted, but all those who could not be adjusted, were retrenched by payment of retrenchment compensation. In all, 39 employees were retrenched. Respondent No.2 was one of them. The respondent NO.2 was given following letter at the time of retrenchment:
We regret to inform you that your services are no longer required in SCOPE. Your services are, thereforee, hereby terminated with effect from 15.2.1988(AN). A draft of Rs. 3,098/- is enclosed. The amount includes one month salary in lieu of notice as per your terms of appointment and also as a measure of goodwill management has added a sum of Rs. 1,518/- representing 15 days pay for every completed year of service.
3. Similar letters were issued to all retrenched employees along with cheques of retrenchment compensation. The respondent No.2 aggrieved by his removal from service, filed civil suit before the Civil Judge in 1988 and continued with this suit till October, 2000. In October, 2000, he withdrew the suit, seeking liberty to raise an industrial dispute. He raised an industrial dispute before Government of NCT of Delhi that his termination was illegal and unjustified and the dispute was referred by Government of NCT of Delhi o n 4.10.2001 to the Industrial Tribunal in following terms:
Whether the retrenchment of Shri Raghubir Singh, s/o Bhagwan Singh, is illegal and/or unjustified, and if so, what directions are necessary in this respect.?
4. The Tribunal, after issuing notice and considering the pleadings of both sides, framed following issues:
i. Whether the reference has not sent by their appropriate government. If so, it effect?
ii. Whether the Claimant is not workman. If so, its effect?
iii. Whether the claim is highly delayed. If so, its effect?
iv. Whether the claim was only on ad hoc basis. If so, its effect?
v. As per terms of reference.
5. The Tribunal recorded evidence of the parties. From the evidence, the admitted position appears that the respondent No.2 was the only foreman with PESA. There was no person junior to him and no person senior to him; (ii) at the time of termination, a draft of Rs. 3098/- was given to him which included one month's salary in lieu of notice and compensation @ 15 days' basis for every accumulated days of service;(iii) the petitioner had not undertaken any construction activity despite merger of PSEA nor the petitioner was in the job of making buildings; (iv) the respondent No.2 was working as a foreman with PESA, taken over by the petitioner.
6. While answering issue No.1, whether the reference has been made by the appropriate government or not, the Tribunal observed that no evidence has been led that the management was an industry being carried on by or under the authority of the Central Government. It further observed that since the Delhi was a Union Territory, a Union Territory is administered by the President of India under Article 239 of the Constitution of India. In case of the Union Territory, the Central Government and the State Government merge into each other and it is immaterial whether an order of reference is made by one or the other. The Tribunal rejected the contention of the petitioner that Delhi Government was not an appropriate Government. I consider that this finding of the Tribunal is contrary to the facts and law. The Delhi is no longer a Union Territory and it is a State now for many years. It was a State when the reference was made. There is no merger of Central Government and the Delhi Government either in case of labour matters or in other matters. The reasons given by the Tribunal for upholding that the reference being made by the Delhi Government, was in order, do not stand the scrutiny of law. In writ petition (Civil) No. 2486 of 1997, in a case under CLRA Act, regarding issuance of a notification under Section 10 of CLRA Act, this Court gave directions to Delhi Government to refer the matter to Labour Advisory Board. The Labour Advisory Board sought legal opinion and the Ministry of Labour, Government of India, vide letter dated 11.2.2000, confirmed that the appropriate government in respect of the petitioner under Contract Labour(Regulations & Abolition) Act, & ID Act, was the Central Government and the matter of issuance of notification shall be considered by the Central Government. This letter was brought to the notice of the Court. This letter shows that the petitioner, a society, registered under the Societies' Act at the behest of Central Government was constituted to look after, internally and externally, the public sector undertakings, was working under the authority of the Central Government. Had it been not so, the Central Government would not have written to Delhi Government about it being the appropriate Government. The petitioner society was constituted by the Central Government to assist the public sector undertakings in their development, effective management and achievements. The public sector undertakings were spread all over India. The Tribunal ignored the letter, observing that this letter was not binding on the Tribunal. I consider that the letter was a clear evidence and proof of the fact that the business of the petitioner was being conducted under the authority of Central Government and Tribunal's order is perverse as it ignored material evidence and gave decision of issue on no evidence, conjectures and surmises. In Steel Authority of India Ltd and Ors. v. National Waterfront Workers' Union and ors. : (2001)IILLJ1087SC , the Supreme Court held'
There cannot be any dispute that all the Central Government companies with which we are dealing here are not and cannot be equated to Central Government though they may be 'State' within the meaning of Article 12 of the Constitution. We have held above that being the instrumentality or agency of the Central Government would not by itself amount to having the authority of the Central Government to carry on that particular industry. thereforee, it will be incorrect to say that in relation to any establishment of a Central Government Company/undertaking, the appropriate Government will be the Central Government. To hold that the Central Government is ' the appropriate Government' in relation to an establishment, the court must be satisfied that the particular industry in question is carried on by or under the authority of the Central Government. If this aspect is kept in mind it would be clear that the Central Government will be the 'appropriate Government' under the CLRA Act and the I.D. Act provided the industry in question is carried on by Central Government company/an undertaking under the authority of the Central Government. Such an authority may be conferred, either by a Statute or by virtue of relationship of principal and agent or delegation of power. Where the authority, to carry on any industry for or on behalf of the Central government, is conferred on the Government company/any undertaking by the Statute under which it is created, no further question arises. But, if it is not so, the question that arises is whether there is any conferment of authority of the Government company/any undertaking by the Central Government to carry on the industry in question. This is a question of fact and has to be ascertained on the facts and in the circumstances of each case. (Para 39)
7. The letter written by the Central Government to the Advisory Board of Delhi Government that it was the appropriate government, was sufficient evidence to show that the petitioner's business was being carried on under the authority of the Central Government. In fact, the petitioner was a creation of the Central Government in order to help the Central Government, for development of the public sector undertakings, it had to work under the directions and guidelines of Central Government only. The appropriate government in case of the petitioner, thereforee, had to be the Central Government and the reference made by the Delhi Government was illegal and beyond jurisdiction.
8. While answering issue No.2, i.e. whether the claimant was a workman or not, the Tribunal observed that the claimant, in this statement, has stated that he was a foreman but still a workman. The management had taken the stand that the respondent being a foreman, was working as a supervisor and he was required to supervise the work of other workmen, working under him. The Tribunal refuted the argument and observed that it was for the management to prove on record that the claimant was falling in one of the exceptions as mentioned in Section 2(s) and he was doing the work either of managerial category or of supervisory category and he was having powers to sanction or recommend leaves. Since there was no evidence led by the management, the claimant, has to be held as a workman. I consider that the Tribunal misdirected itself by putting the onus of proving that the respondent was a workman on the management. The respondent was appointed as a Foreman. A foreman, as per dictionary meaning, has supervisory duties. If the respondent claimed that he was a workman, the onus to prove that he was a workman, was on the respondent No.2 himself. In : (2004)IIILLJ740SC Mukesh K. Tripathi v. Sr. Divisional Manager, LIC and Ors., Supreme Court, considering its earlier judgments in : (1961)IILLJ94SC Management of M/s. May and Baker (India) Ltd. v. Their Workmen : (1963)IILLJ459SC Western India Match Co. Ltd. v. Workmen : (1995)ILLJ303SC H.R. Adyanthaya v. Sandoz (India) Ltd., and observed as under:
The Constitution Bench summarized the legal position that arose from the statutory provisions and from the decisions rendered by this Court, stating:
Till 29.8.1956 the definition of workman under the ID Act was confined to skilled and unskilled manual or clerical work and did not include the categories of persons who were employed to do 'supervisory' and 'technical work'. The said categories 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 Act 46 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 the first time those doing non-manual unskilled and skilled work also came to be included in the definition with the result that the persons doing skilled and unskilled work whether manual or otherwise, qualified to become workmen under the ID Act.(para 16) From the perusal of the award dated 28.5.1996 of the Tribunal, it does not appear that the Appellant herein had adduced any evidence whatsoever as regard the nature of his duties so as to establish that he had performed any skilled, unskilled, manual, technical or operational duties. The offer of appointment dated 16/7/1987 read with the Scheme clearly proved that he was appointed as an apprentice and not to do any skilled, unskilled, manual, technical or operational job. The onus was on the Appellant to prove that he is a workman. He failed to prove the same. Furthermore, the duties and obligations of a Development Officer or the Corporation by no stretch of imagination can be held to be performed by an apprentice.(Para 23)
9. The view taken by the Tribunal that the respondent was not shown to be doing any managerial or supervisory duties by the management, is contrary to the settled law. In fact, it is now settled law that in order to be covered under Section 2(s), a workman has to prove that he was doing one of the categories of work as enumerated in Section 2(s) i.e. manual, skilled, semi skilled, clerical, operational, technical or supervisory. In case of a supervisor, the salary must be below Rs. 1600/-. A Foreman, in a construction of a building, does not do any manual, clerical, skilled or semi skilled work. He essentially has to supervise the work of construction at various stages. A construction of building has several steps. The first step is digging of trenches for laying foundation. The second step is laying foundation and raising superstructure comprising of walls, concrete slabs, pillars, laying of RCC roof etc. While the workforce involved in this entire work are labour, meson, bar benders etc., their work is supervised by the supervisors, foremen. architects. Supervisor and foreman have not to do work manually, but they have simply to give instructions to the labours and supervise their work so that work is done properly and efficiently. Despite being a foreman, the respondent claimed to be a workman, so it was obligatory on the respondent to prove that work, as specified under Section 2(s) of the Industrial Disputes Act,was being done by him. The respondent failed to show that he was doing any manual, skilled, semi skilled, clerical, technical job. He did not specify the nature of his work. It has also come in evidence that he was the only foreman, employed by the management. I, thereforee, consider that the order of the Tribunal, putting onus on the management to prove that the respondent was a workman, is a perverse order.
10. The Tribunal has held that the retrenchment of the respondent was null and void since no reasons were given by the petitioner for retrenchment in the letter written to him. The reasons of his having become surplus or his services not required, are no reasons. Section 25(F) of the Industrial Disputes Act reads as under:
25.F. Conditions precedent to retrenchment of workmen.- No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until-
(a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice;
1{* * * * * * * * }
(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days' average pay 2[for every completed year of continuous service] or any part thereof in excess of six months; and
(c) notice in the prescribed manner is served on the appropriate Government 3[ for such authority as may be specified by the appropriate Government by notification in the Official Gazette].
11. A perusal of Section 25(F) of the Industrial Disputes Act, would show that the management is supposed to give one month's notice in writing specifying the reasons for retrenchment and after the expiry of one month the workman is to be paid retrenchment compensation @ 15 days' average pay for every completing years of continuous service or part thereof. In alternative to the notice of one month, the management can pay wages for one month. It is obvious that where the management pays wages of one month in lieu of notice and serves no notice and also pays compensation in accordance with Section 25(F) of the Industrial Disputes Act, there is compliance of Section 25F of the Act. If the management is not supposed to serve any notice, the management is not supposed to give reasons for retrenchment in the notice, although valid reasons may be there. In this case, along with the letter of retrenchment, one month's notice pay and the compensation was given to the respondent. In the letter of retrenchment, it was told to the respondent that his services were no more required. The reasons for not requiring of service were that the petitioner had not undertaken the construction of the twin towers, which was being done by PSEA and had tried to adjust all employees employed by PSEA to other organizations and when it could not adjust the employees, it retrenched their services by paying legal compensation. Thus, there was complete compliance of Section 25(F) of I.D. Act. The Tribunal view that retrenchment was invalid for want of reasons in the notice, is contrary to facts and law. The management was not supposed to give detailed reasons in the letter written to the respondent because the management had given notice pay as well as compensation to the respondent. It was sufficient for the petitioner to disclose to the respondent that his services were not required.
12. The Tribunal, while allowing the claim of the respondent observed that the workman was only a foreman with the management and it was hard to believe that services of only one foreman can become surplus. I consider that it is not for the court to say and decide whether the services of a single foreman were required by the management or not. It was for the management to see whether the services of a person are required or not. A Judge, who embarks upon considering the requirements of the management to see if the person, who has been declared surplus was actually surplus or not, must be acquainted with the working of the industry and its different aspects. In civil construction, there are different stages of work, as already mentioned. At each stage, deployment of different nature of skilled and unskilled persons are required. In the initial stage, for digging trenches, labours skilled in digging is required and once digging of trenches is completed, the labour along with supervisor, is to be disengaged. Then the work of laying foundation and raising structure i.e. masonry work and RCC work starts. For this work, mesons, bar benders, different kinds of labours, scaffolding persons responsible for putting scaffolding etc are required. Once the basic structure is complete, most of the workforce is to be disengaged and then starts the work of next phase of skilled and unskilled labours who lay water pipes, electricity wiring pipes, sewage connections and do electrical wiring etc. Next comes the stage of plastering and finishing where many other skilled and unskilled labours like carpenters, painters etc., are required. In building construction, each workforce has to leave at different stages, it would be disastrous for the industry to hold with the workforce engaged once, cannot be disengaged till the entire building is completed. The Tribunal, in this case, has held that the building was completed in July, 2002, while the petitioner was disengaged in 1988. So, the Tribunal has awarded back wages to the workman till July, 2002 i.e. date of completion of service. After building is completed, grant of completion certificate itself takes several months. The Tribunal grossly misdirected itself, considering that till the completion certificate is not granted, the building is not complete and the respondent was to continue in service. In building construction, the workmen who are engaged, have to leave at different stages as and when the stage is over. No workman can claim right to remain employed till the completion certificate is granted to the building.
13. I consider that the Tribunal grossly misdirected itself. The award of the Tribunal is perverse. I hereby set aside the award. The petition is allowed. No orders as to costs.