S.B. Sinha, J.
1. The appellant is the management of M/s. Blrla Jute and industries Ltd. of which the first respondent was a workman, his services were terminated without initialing arty disciplinary proceedings on 1.9.85 upon payment of one Month's wages. The industrial dispute was raised by the first respondent and ultimately the State of West Bengal in terms of its order dated 1.6.1988 referred the said dispute for adjudication before the industrial Tribunal on the following issue:
1. Whether termination of service of Shri Rajeshwar Mahato?
2. To what relief, if any, is he entitled?
2. Before the Tribunal below the appellant raised a plea that the first respondent is not a workman within the meaning of section 2(s) of the industrial Disputes Act, 1947 as he was incharge of one of the three shifts of the work in the mill.
3. The appellant examined two witnesses in support of their statement. The witnesses, inter alia, admitted that the first respondent was receiving Rs. 1,185/- per month by way of salary. They, however, alleged that petitioner was the appointing and disciplinary authority of the workmen and also used to grant to the leave. The said witnesses further stated that the first respondent has been provided with a furnished quarters to which the ordinary workmen is not entitled to. The first respondent in its evidence denied and disputed the said allegations and stated that his main Job was clarlcal in nature. Before the learned industrial Dispute Tribunal, however, the management failed to produce the relevant documents except one document which purported to have shown that the petitioner had granted leave to one of the workmen.
4. The learned Tribunal below considered the provision of West Bengal amendment of the definition of workmen as contained in section 2(s) of the industrial Disputes Act whereby and whereunder a workman although a supervisor if drawing salary more than Rs. 1,000/- would not be a workman as also the amendment of the Central Act, in terms whereof a supervisor drawing a salary of more than Rs. 1,600/- would be a workman and held that in terms of Article 254 of the Constitution of india the Stale Amending Act shall prevail. On merit of the matter the learned Tribunal below mainly relied upon the fact that the first respondent had been provided with a free furnished quarter.
5. The first respondent filed a writ application questioning the award made by the said Tribunal answering the reference against the workman and in favour of the management. The learned trial Judge in his Judgment, inter alia, held that the evidence adduced before the learned Tribunal clearly showed that the main function of first respondent was clerical in nature and he cannot be said to be holding the post of Supervisor. The learned trial Judge further held that the learned industrial Tribunal completely misdirected himself in holding that the amendment in section 2(s) of the industrial Disputes Act by the State legislature shall prevail over the amendment made by the Parliament by reason of the industrial Disputes Amendment Act, 1982 which came into force with effect from 1.8.1984.
6. Mr. R.N. Das the learned counsel appearing on behalf of the appellant, inter alia, submitted that the learned trial Judge erred in holding that the first respondent was a workman and the act on the part of the management in terminating his service was illegal.
7. The learned counsel in support of his contention has relied upon the decisions in Syed Yakoob v. K.S. Radhakrishnan and Ors. reported in : [1964]5SCR64 and State of Andhra Pradesh and Ors. v. Chitra Venkata Rao, reported in : (1976)ILLJ21SC .
8. The first respondent appeared before us in person and, filter alia, submitted that the management had not paid his dues for a long time.
9. Before we proceed to enter into the merit of the matter, we may record that Mr. Das appearing on behalf of the appellant had suggested that the management is ready and agreeable to pay a sum of Rs. 2.00.000/- to the first respondent. 'Workman' has been defined fn section 2(s) of the industrial Disputes Act, 1947, in the following terms :--
Any person (Including and apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory 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 the Air Force Act, 1950 (45 of 1950). or the Army Act, 1950 (46 of 1950). or the Navy Act, 1957 (62 of 1957); or
(ii) who is employed in the police service or as an officer or other 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 one thousand six 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.
10. In the said provision, the amendment made by the State of West Bengal reads thus :-
(1) in sub-clause (iv) of clause (s) of section 2 of the principal Act, for the words 'five hundred', the words 'one thousand', shall be subslltuted-W.B. Act XXX of 1980, section 3 (2-9-1980)
(2) in clause(s), after the word 'technical', the words 'sales promotion' shall be inserted-W.B. Act LVI1 of 1980, section 3.
(3) in section 2 of the principal Act, in clause(s), after the words 'or supervisory work', the words, 'or any work for the promotion of sales', shall be inserted.-W.B. Act 33 of 1986.
11. Prior to coming into force of the Act XI, VI of 1982 a supervisor who used to get his salary upto Rs. 500/- was also a workman but the said sum by reason of the aforementioned amendment has been enhanced to Rs. 1,600/-. It appears that State of West Bengal had amended the sub-clause iV of clause(s) of section 2 of the principal Act by substituting the figure 1000/- in place of 500/-, by reason of section 3 of West Bengal Act No. XXX of 1980 which came into force with effect from 2.9.80.
12. The matter of legislation relating to industrial Disputes falls within list III of seventh schedule of the Constitution of india. Both the Parliament and the State Legislature, therefore, have legislative competence to enact a law. The State of West Bengal has not enacted a separate law. It merely amended certain provisions of the industrial Disputes Act in the year 1980 and in respect of other provisions of the Central Act were to prevail. As the West Bengal Amendment was made in the year 1980 and Parliamentary Act came into operation in the year 1984 there cannot be any doubt whatsoever that the Parliamentary Act shall prevail.
13. Article 254 of the Constitution of india reads thus :-
'Inconsistency between laws made by Parliament and laws made by the Legislatures of States (1) if any provision of a law made by the Legislature of a State is repugnant to any provisions of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.
(2) When a law made by the Legislature of State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in the State:
Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of State.'
14. A bare perusal of the aforementioned provision leave no manner of doubt that repugnancy between the State Act and the Central Act, if any, must be answered in favour of the workmen and against the management. By reason of the Central (Amendment) Act which is later in point of time the State Act would be deemed to have been repealed. The Slate Government could have amended the provision further even after the coming into force of the Central Act upon obtaining the consent of the President of india. Having not done so, a supervisor receiving a remuneration upto Rs. 1600/- will come within the purview of definition of workmen as contained in section 2(s) of the industrial Disputes Act.
15. The learned Tribunal below has placed reliance upon a decision of the apex court in Justinian Augusta DC Piedade Barreto v. Antonio Vicente Da Fonseca and Ors. reported in : [1979]3SCR494 . In the said decision it was held that the Limitation Act applicable in the State of Goa was a special law. In view of provision of section 29(2) of the Limitation Act, 1963 it was held that the provision of Prtuguese Civil Code dealing with the subject of the limitation will have to be read into the Limitation Act. 1963 and, thus, no repugnance arises. The learned industrial Tribunal completely misdirected himself in applying the ratio of the said decision in the instant case. Clause I of Article 254 lays down a general rule. Clause 2 is an exception to Clause 1 and proviso appended thereto qualifies the said exception.
16. In the instant case there is a direct conflict between the two provisions and, thus, there cannot be any doubt whatsoever that the Central Act shall prevail. The repugnance arises in view of the fact that the right of a workman under the Central Act is being sought to be taken away. This could not have been done in view of the fact that the Parliament later on amended the Act. The interpretation of the learned Presiding Officer, industrial Tribunal as regards the provisions of section 2(s) as amended by the State vis-a-vis amended by the Slate Legislature is clearly wrong.
17. The learned trial Judge, therefore, in our opinion has rightly held that the award of the learned Tribunal is vitiated in law. The learned trial Judge further in our opinion has rightly come to a decision that the first respondent therein performing a supervisory duty. Reference under section 10(1)(d) of the Act was made by the Central Government treating the first respondent as workman. Although the said reference was not sacroscant and it was open to the management to show that despite such reference the first respondent was not a workman but the onus of proof lays on the management. Admittedly no letter of appointment was issued tn favour of the first respondent. This is unusual in a case of appointment of a supervisor. The first respondent was appointed on a casual basis. The question as to whether a person is a workman or not is essentially a question of fact and such question has to be answered keeping in view the nature of work performed by the concerned employee. Despite the fact that the appellant was in possession of all the relevant documents and particularly in view of the fact on its own showing that first respondent was merely one of the three shifts in-charge, it was possible for them to show the nature of the job performed by the alleged shifts in-charge. They deliberately withheld the documents form the industrial Tribunal. Thus, the industrial Tribunal ought to have drawn an adverse inference against the management. On the contrary the Tribunal appeared to have relied mainly on the nature of accommodation provided to the workmen which is not a relevant criteria for arriving at a finding as to whether he was a workman or not. At the cost of repetition it may be stated that what was required to be considered by the industrial Tribunal was the nature of work performed by an employee in order to enable it to arrive at a finding as to whether he is a workman or not. The Tribunal below failed to do the same. Thus, the award of the Tribunal is vitiated in law in so far as it failed to take into consideration the relevant facts and proceeded to decide the issue on irrelevant fact not germane for deciding the issue in question. The learned Tribunal failed to pose unto itself the correct question so as to enable it to arrive at a correct finding of fact and. thus, misdirected himself in law.
18. Thus, there cannot be any doubt whatsoever that the first respondent was a workman. As he was workman, his service could have been terminated only in terms of the provisions of standing order certified under the industrial Employment (Standing Order) Act. His services were terminated only on payment of one month's notice. The provision of section 25F of the industrial Disputes Act had not been compiled with. Thus, there cannot be any doubt whatsoever that the termination of service of the workmen was wholly illegal and in that view of the matter only award that could have been passed, was that his termination was illegal and, he was entitled to the relief of re-instatement with full back wages. It may be noticed that on merit so far as the action on the part of the management is concerned the only evidence which was led before the tribunal below was that the appellant-Company was suffering financial losses which were not a relevant consideration for answering the reference.
19. For the reasons aforementioned we are of the opinion that the learned trial Judge has rightly held that award of the tribunal below was fit to be set aside.
20. In Syed Yakoob v K.S. Radhakrishnan and Ors. reported in : [1964]5SCR64 , the apex court clearly held:-
A writ of certlorart can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals: these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise Jurisdiction. A Writ can similarly be issued where in exercise of Jurisdiction conferred on it, the court or Tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural Justice. There is, however, no doubt that the Jurisdiction to issue a writ of certiorari is a supervisory Jurisdiction and the court exercising it is not entitled to act as an appellate court. This limitation necessarily means that findings of facts reached by the inferior court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive Jurisdiction of the Tribunal, and the said points cannot be agitated before a writ court. It is within these limits that the Jurisdiction conferred on the High Courts under Article 226 to issue a writ of certlorarl can be legitimately exercised (vide Hari Vishnu Kamath v. Ahmad ishaque, : [1955]1SCR1104 ; Nagendra Nath v. Commr. of Hills Division, : [1958]1SCR1240 and KaushalyaDeviv. Bachtttar Singh, : AIR1960SC1168 .
21. In State of Andhra Pradesh & Ors. v. Chitra Venkata Rao reported in : (1976)ILLJ21SC , the apex court was dealing with a matter of domestic enquiry. The court held that the High Court can exercise its Jurisdiction under Article 226 in issuing a writ of certiorari even if there is an error in law on the face of the order and not an error of fact. In the instant case errors committed by the learned industrial Tribunal on Jurisdlctlonal errors and thus, a writ of certiorari could be issued by the learned trial Judge.
22. For the reasons aforementioned there is no merit in this appeal which is accordingly dismissed. As the appellant has been deprived of his legitimate dues for a long time, the appellant shall bear the costs of the respondent. Advocates' fee assessed at 200 Cms.
R. K. Mltra. J.
23. I agree.
24. Appeal dismissed