JUDGMENT B.N. Misra, J.
1. Challenge in this writ petition is to the orders under Annexures-12 and 14 of the Deputy Labour Commissioner, Meerut. Respondent No. 1, finding that the late Bennett Solomon was 'Workman' under the U.P. Industrial Disputes Act, 1947 (hereinafter referred to as the Act) and that his date of birth was January 15, 1918 and, therefore, his retirement on January 15, 1976 before he attained the age of 60 years was illegal.
2. The late Bennett Solomon was working as an Assistant Engineer under the U.P. State Sugar Corporation Limited, the petitioner. He died on May 15, 1977 and his legal representatives are respondent Nos. 2 to 6. According to the petitioner, Solomon's date of birth was January 15, 1916 and, therefore, he was due to retire on January 15, 1976. The petitioner served a notice on December 9, 1975 on Solomon (An-nexure-5) stating therein that he would be retired from service with effect from January 15, 1976. Against the said notice Solomon made a representation (Annexure-6) under Clause-L.L.(4) of U.P. Sugar Standing Orders, 1971 governing the conditions of employment of workmen in Vacuum Pan Sugar Factories, to the Labour Commissioner, Uttar Pradesh. The said representation was sent to the Deputy Labour Commissioner, Meerut for disposal. Parties filed their respective affidavits before the Deputy Labour Commissioner and also adduced oral and documentary evidence in support of their respective cases. Solomon's case was that his date of birth was January 15, 1918 and as such he was due to retire only on January 15, 1978 and not on January 15, 1976. He also prayed for necessary correction of his date of birth. The case of the petitioner was that as per the records of the corporation, Solomon's date of birth was January 15, 1916 and, therefore, he was due to retire on January 15, 1976. The petitioner took a preliminary objection that Solomon was not a 'workman as per the definition of that expression contained in the Act. On consideration of the materials and evidence placed before him, the Deputy Labour Commissioner vide his order under Annexure-12 held that Solomon was a 'workman' under the Act. The preliminary objection having been held against the petitioner, the Deputy Labour Commissioner proceeded to consider the dispute between the parties regarding Solomon's date of birth and held by his order under Annexure-14 that Solomon's date of birth was January 15, 1918 and as such he must be deemed to have continued in service till he attained the age of 60 years with full wages.
3. Learned counsel for the petitioner urged before this court that the Deputy, Labour Commissioner erred in law in finding that Solomon was 'Workman' under the Act as Solomon's work and duties clearly took him out of the definition of 'Workman' as contained in Section 2(z) of the Act. It may be noted that no material has been placed in this court enumerating the duties and the work which were performed by Solomon as an Assistant Engineer. In support of his contention, learned counsel for the petitioner referred to paragraph No. 7 of Annexure-12 wherein Solomon's duties have been described by the Deputy Labour Commissioner. The work and the duties of Solomon as described in the aforesaid paragraph No. 7 are as follows:-
4. According to the learned counsel for the petitioner as the work and the duties of Solomon described above were supervisory in nature and his wages were more than Rs. 500 per month, he was not a 'workman' under the Act. In support of this contention learned counsel for the petitioner relied on a decision of the Supreme Court in Burmah Shell Oil Storage and Distributing Co. of India Ltd. v. The Burmah Shell Management Staff Association and Ors. 1970 (2) LLJ 590. Of the several categories of employees discussed in the aforesaid decision, learned counsel for the petitioner submitted that the decision of the Supreme Court with regard to a "Transport Engineer" was clearly applicable to Solomon's case as the duties of a 'Transport Engineer' discussed in the aforesaid judgment were similar to the duties which were being performed by Solomon. In the case before the Supreme Court the Transport Engineer had 58 persons working under him as his direct subordinates. He allocated the jobs to the workmen under him and re-allocated the jobs when necessary. He supervised the work of the mechanics and fitters. He was incharge of maintaining discipline in the department, initiated disciplinary action as and when necessary, reported on the performance of the workmen working under him and sanctioned certain kinds of leave to the workmen working under him. On consideration of the aforesaid duties of the Transport Engineer the Supreme Court held that the major part of the Transport Engineer's duties comprised of supervisory work. In Solomon's case, however, his duties as described in paragraph No. 7 of Annexure-12 do not indicate that the major part of his duties was of a supervisory nature. As already stated, his work was technical in nature and he merely looked after the work of the workmen working under him as well as the concerned machines. He did not allocate jobs to the workmen. This work was done either by the Manager or the Chief Engineer. He had no power to sanction leave to any of the workmen working under him nor did he exercise any disciplinary control over the workmen. In these circumstances Solomon's duties cannot be said to be of supervisory nature. The Deputy Labour Commissioner had considered the oral and documentary evidence and all the materials placed before him relating to the nature of duties of Solomon and had come to the conclusion that he was a 'workman' under the Act. Nothing has been placed before this court to justify a different conclusion.
5. The "next point urged on behalf of the petitioner relates to Solomon's date of birth. Here again parties had led oral and documentary evidence in support of their respective cases and on a detailed consideration of the same the Deputy Labour Commissioner came to find that Solomon's date of birth was 15-1- 1918 and not 15-1-1916. Copies of several documents have been filed before this court by the petitioner, in some of which there are additions and over-writings and it is suggested that these interpolations were done by Solomon with the connivance of some others in the office. It appears that these vague allegations have not at all been substantiated. On perusal of Annexure-14, it is seen that the Deputy Labour Commissioner has discussed in detail all the oral and documentary evidence adduced by both parties, and has come to the conclusion that Solomon's actual date of birth was 15-1-1918. It must be borne in mind that the question whether Solomon was born on 15-1-1916 or on 15-1-1918 is essentially a question of fact and interference with the finding of fact recorded by the Deputy Labour Commissioner is not at all called for.
6. In his order under Annexure-14, the Deputy Labour Commissioner has at the end held that Solomon should be deemed to have continued in service and entitled to full wages till he attained the age of 60 years. Admittedly, Solomon did not live up to the age of 60 years as he died on 15-5-1977. It is, therefore, clarified that Solomon shall be deemed to have continued in service under the petitioner in the post last held by him till 15-5-1977 and entitled to all financial benefits due to him under the law upto 15-5-1977 which shall be paid to his legal representatives, respondent Nos. 2 to 6.
7. Subject to this clarification, the orders under Annexures-12 and 14 are confirmed. The writ petition which has no merit is dismissed with costs. Hearing fee is assessed as Rs. 300,