JUDGMENT 1. THIS appeal is against a judgment and order of amiya Kumar Mukherjee, J. discharging the rule obtained by the petitioner. The relevant facts according to the petitioner are as follows : The petitioner was appointed as a foreman under the contesting respondent No. 2 Dunbar Mills Ltd. (hereinafter referred to as the Company) on the basis of a letter of appointment set out below : dunbar Mills Ltd. Calcutta-1, November 19th 1964. Sri R.N. Deb, 66, W.C. Banerjee Street, calutta-6. Dear- Sir, with reference to your recent inter view, we are pleased to offer the post of workshop Supervisor in cur Mills on a consolidated salary of Rs. 400/- (Rupees four hundred only) per month. You will be on probation for a period of three months. On satisfactory completion of the probationary period, you will be confirmed in the post. During this probationary period, your appointment is terminable without notice. On confirmation and at any time thereafter, your services are terminable by either side by giving a month's written notice or by paying an amount equivalent to one month's pay to the other. Your appointment will take effect from the date of your joining. Please let us know whether you accept this appointment on the foregoing terms and conditions. Accepted sd- R. N. Deb with the sanction of our director you have been designated as Workshop Foreman sd. Illegible for and on behalf of the dunbar Mills Ltd. Kettlewell Bullen and Co. Ltd. Sd. Illegible director. 2. THE petitioner joined the service on November 19, 1964 and on confirmation continued to work till September 18, 1971 drawing then a salary of rs. 765/- per month when he was dismissed from service by the Company. At the time of dismissal of the petitioner, an adjudication proceeding was pending before the Eighth Industrial Tribunal, west Bengal (respondent No. 1) herein-after referred to as the Tribunal, on the issue of bonus for the accounting year 1967 and the petitioner was a concerned workman in the dispute. The company dismissed the petitioner in violation of the provisions of section 33 (2) (b) of the Industrial Disputes act, 1947 without filling any application praying for approval of the dismissal. The company dismissed the petitioner in violation of the provisions of section 33 (2) (b) of the Industrial Disputes act, 1947 without filling any application praying for approval of the dismissal. The petitioner thereupon filed a petition before the Tribunal under section 3a, contending that the order of dismissal was a colourable exercise of power under the terms of contract by way of punishment and victimisation, violating provisions of section 33. At the hearing, preliminary objections were raised by the Company in it is written statement, stating that the petitioner was employed in Supervisory capacity drawing wages in excess of rs. 500/-, and was not a workman not was he concerned with the pending ad judication. The Tribunal, in view of questions of fact involved for decision on the above points, proceeded with the case for hearing on evidence. 3. EVIDENCE, oral and documentary, was adduced by the parties at the hearing. The Tribunal, on the consideration of the evidence, held that the petitioner was not a workman and accordingly dismissed the application. It was found that the main job or primary work of the petitioner was to get the repair works of the machinery done by the miseries and vice men and only when they failed, he was required to apply his own hands, The salary register Ext. H also showed that the petitioner's name was enlisted as a member of the "supervisory Staff". The petitioner corresponded with me chief Engineer as to how broken down machines would be dealt with the company, he was required to move from one department to another, even directed another Supervisor to see the work of the "processing Department" and there was no evidence that he worked under any supervisor. As already noted, on these findings the Tribunal held that the application under section 33a was not maintainable. 4. AGAINST this award, the petitioner1 moved this Court in Constitutional Writ jurisdiction contending inter alia that the Tribunal committed an error in exercise of its jurisdiction patent on the face of records in holding that the petitioner was not a workman under the Industrial Disputes Act, 1947. 4. AGAINST this award, the petitioner1 moved this Court in Constitutional Writ jurisdiction contending inter alia that the Tribunal committed an error in exercise of its jurisdiction patent on the face of records in holding that the petitioner was not a workman under the Industrial Disputes Act, 1947. The award was bad on perverse finding on jurisdictional facts and the Tribunal failed to exercise the jurisdiction vested on it in not applying well settled principles of law laid down by the Courts and also by limiting the definition of workman to only manual and clerical workers and not to technical personnel, accordingly it was prayed that a writ in the nature of certiorari should be issued quashing the award and such further or other orders be passed as would be deemed fit and proper. On this application a rule nisi was issued by this Court. The rule was opposed by the company by filing an affidavit in opposition, affirmed on its behalf by its chief officer on August 1, 1973. It was disputed that the note in the appointment letter regarding designation of the petitioner as Foreman was not in the copy retained by the Company. It was further stated (hat the petitioner joined and continued as Works Supervisor till the termination of service which was a termination simplicitor in terms of con tract and not by way of punishment. It was contended that the nature of his job was mainly supervisory and he was not a workman as defined in section 2 (s) of the Industrial Disputes Act, 1947. There was no violation of section 33 (2) in dismissing the petitioner and approval of the Tribunal was not necessary. It was denied that the award impugned was erroneous or vitiated for any reason. 5. ON hearing the pat ties, the learn ed Judge was of the opinion that the adequacy or reliability of evidence could not be canvassed in a proceeding under Article 226 (1). It was settled law that the main work which a work man is to do is the sole determining factor and any work carried incidentally will having no bearing. On a consideration of the evidence the learned judge found that the Tribunal was correct in its legal- inference that the petitioner's main work was as a supervisor and he was drawing a salary exceeding Rs. On a consideration of the evidence the learned judge found that the Tribunal was correct in its legal- inference that the petitioner's main work was as a supervisor and he was drawing a salary exceeding Rs. 500/- and there is no averment by him that he was a technical staff. The conclusion arrived at by die tribunal could not be said to be per verse or contract to principles law laid down by the Supreme Court. It was further held that the onus to establish that the application under section 33a is maintainable lies prima facie upon the applicant and the petitioner failed to establish that he was a workman under the Act. In the view that was taken, the rule was discharged. This appeal is against this decision. 6. ANTICIPATING the preliminary objection which was in fact made by Mr. Ginwalla appearing for the Company, mr. Arun Kumar Dutta (Sr.) submitted that the High Court, in proceedings for a writ, has ordinarily no jurisdiction to interfere with the findings of fact arrived at by the Tribunal. But in respect of jurisdictional facts, the High Court has the power to review the finding on the evidence on record. It was held in the (7) State of Madhya Pradesh v. D.K. Jadav A.I.R. 1968 S.C. 1186:- "it is well established that where the jurisdiction of an administrative authority depends upon a preliminary findings of fact, the High Court is entitled, in a proceeding for a writ to determine upon its own independent judgment whether or not the finding is correct." Following the above and other cases a Division Bench of this Court in (3) Baldev Singh v. Indian Explosives Ltd. 76 C.W.N. 342 observed :- "it seems to us that Mr. Ginwalla's contention is well-founded and this Court is entitled to weigh and appraise the evidence adduced before the Tribunal by the parties in order to determine the question namely if the appellant is a workman within the meaning of the Act. This, no doubt, is a jurisdictional fact and if in the opinion of this Court the tribunal came to a wrong decision on the evidence adduced by the parties, this Court should interfere with the conclusion of the Tribunal." On the above authorities, it is obvious that the preliminary objection, has no force and must be overruled. This, no doubt, is a jurisdictional fact and if in the opinion of this Court the tribunal came to a wrong decision on the evidence adduced by the parties, this Court should interfere with the conclusion of the Tribunal." On the above authorities, it is obvious that the preliminary objection, has no force and must be overruled. The learned Judge's observation that the tribunal is the sole judge of fact and adequacy and reliability of evidence is not a matter which can be permitted to canvassed in such proceeding must therefore relate, subject even to exceptions, to facts other than jurisdictional facts. It may be noted that even the learned Judge considered for himself the evidence adduced before he agreed with the finding of the Tribunal. 7. MR. Ginwalla further contended that the onus to invoke the jurisdiction of Tribunal under a special statute necessarily lies with the person invoking the jurisdiction. He referred 1:0 tire following observations in Halsbury's laws of England, Third Edition, Volume 9, page 349, Article 820, in support of his proposition:- "prima facie, no matter is to be deemed to be beyond the jurisdiction of a superior court unless it is expressly shown to be so, while nothing is with in the jurisdiction of an inferior court unless it is expressly shown on the face of the proceedings that the particular matter is within the cognizance of the particular court." 8. IN the present case both parties have adduced evidence and Mr. Dutta submitted that in such case the question of onus losses its importance. We propose in the circumstances to appraise the evidence on record in the light of the decisions of the Supreme Court cited before us. Mr. Dutta further contended that the Tribunal on the evidence should have held that while the petitioner established that he was a workman, the Company's evidence in rebuttal did not establish that the petitioner was not a workman. Mr. Ginwalla on the other hand submitted that the award was not against the weight of evidence and accordingly was not liable to be interfered with. ccc 9. As has been observed in (5)Lloyds Bank Ltd. vs. Pannalal Gupta and others A.I.R. 1967 S.C. 428. Mr. Ginwalla on the other hand submitted that the award was not against the weight of evidence and accordingly was not liable to be interfered with. ccc 9. As has been observed in (5)Lloyds Bank Ltd. vs. Pannalal Gupta and others A.I.R. 1967 S.C. 428. "the status of the three workman has to be inferred as a matter of law from facts found and there can be little doubt that if the question involved is one of drawing; a legal inference a to the status of party from facts found that is not a pure question of fact. If the inference drawn by Tribunal in regard to the status of three workmen involved the application of certain legal tests that necessarily become a mixed question of fact and law and the respondent would net be justified in raising a preliminary objection that the appellants should" not be allowed to urge his contention against the correctness of the finding of the Tribunal on such mixed question of law and fact." 10. THE Supreme Court further observed that even if the question is and of mixed fact and law the Court would. not readily interfere with the conclusion of the Tribunal unless the said consign is manifestly or obviously erroneous. The Supreme Court in (1) All India Reserve Bank Employees' Association and another vs. Reserve Bank of India A.I.R. 1966 S.C. 305 (14) observed "the word "supervise" and its derivations are not words of precise import and must often, be construed in the light of the context, for unless controlled, they cover an easily simple oversight and direction as manual work coupled with a power of inspection and superintendence of manual work of others. It is, there fore, necessary to see the full context in which the words occur and the words of our own Act are the surest guide 11. IT was held that the word "such" in section 2 (s) expressly linked the exception to the main part. It was further observed that the work in a Bank involves layer upon layer of checkers and checking is hardly supervision, but where there is a power of assigning duties and distribution of work, there is supervision. 12. IT was held that the word "such" in section 2 (s) expressly linked the exception to the main part. It was further observed that the work in a Bank involves layer upon layer of checkers and checking is hardly supervision, but where there is a power of assigning duties and distribution of work, there is supervision. 12. THE Supreme Court in (2) Ananda Bazar Patrika (P) Ltd. Its workmen 1969-2 Lab L.J. 670 laid down the test that if a person is mainly doing supervisory work bat incidentally or for a fraction of the time a1l does some clerical work, it would have to be held that he is employed in supervisory capacity. Conversely, if the main work is of clerical nature and the mere fact that some supervisory duties are also carried out incidentally or as a small fraction, of his work will net convert his employment as a clerk in to one in supervisory capacity. In (6) Management of M may and Barker (India) Ltd. v. The workmen A.I.R. 1967 S.C. 678 it was held that where the main work of an employee assigned to him is canvassing sales as a representative, the cleric or manual work he was required to a took a small fraction of time and was incidental to his main work of crevassing, it could not be said that he was a workman under the Industrial Disputes act, 1947. 13. THE ratio of the above decision is that the determining factor in documenting whether a person is a workman is the principal or main work he is required to do in his employment. An other work which a person is require to do incidentally in connection with his principal or main work or otherwise as 3, small fraction of his work will not convert the nature of his employment. The principal or main work in the employment of a person will have to be determined from the letter of appointment, the nature of duties the employee has to perform in course of his employment and other attending circumstances. 14. WE should now examine the evidence adduced by the petitioner. The letter of appointment does not indicate the principal or main duties of the petitioner in his employment under the company. 14. WE should now examine the evidence adduced by the petitioner. The letter of appointment does not indicate the principal or main duties of the petitioner in his employment under the company. PW1 sultan stated that the petitioner used to look after works where repair was required to be a necessity that is to say he used to decide that such and such works had to be done and by such and such labourers. The petitioner did such works himself which by reason of complexity could not be done by the mistries and the miseries used to work as per instructions of the petitioner P. W. 2, a worker of the sizing section of the weaving department, stated that in ease of break down, it was reported to the Superintending Engineer or Chief Engineer and the petitioner used to come with some men while the minor works were repaired by the deponent and his assistant mistries. P.W.3 was a technical supervisor and stated that the petitioner's work was to distribute works to fitters as per instructions of the Engineers and his duty was also to work by is own hands in complicated matters. In cross-examination he said that he had no personal knowledge about the instructions of the Engineers to the petitioner. P.W.4 is the petitioner himself who stated that he was a workshop foreman and used to do all repair works by his own hand as per instructions of the superintending Engineer or Chief engineer. He- also set up a Bushranger machine by his own hand for which he was taken to task later on. He admitted that he never got any clearness or over time allowance. The hierarchy officers in the Engineering department of the company according to the petitioner was as follows. The Superintending engineer was at the top. There was a chief Engineer but it was not known if he was below the Superintending Engineer. Thereafter there were three Assistant Engineers, then Supervisors, head-mistries, Vice-men coolies. "the sphere of works of the Supervisors was that which I used to do myself. I am not one of the Supervisors" the petitioner added. Whenever it was reported to the superintending Engineer that repair was necessary, he was deputed to do the works. The Engineers determined the assistance of mistries and coolies that would be required and on it; requisition also labour was supplied. I am not one of the Supervisors" the petitioner added. Whenever it was reported to the superintending Engineer that repair was necessary, he was deputed to do the works. The Engineers determined the assistance of mistries and coolies that would be required and on it; requisition also labour was supplied. The petitioner denied that on his initiative repair works were done or that he used to dictate the mistries. We have carefully considered the evidence on record adduced by the petitioner as summarised above and it appears to us that the said evidence is discrepant and insufficient for arriving at the conclusion that the petitioner was a workman not employed in a supervisory capacity in the Company. The evidence adduced by the Company appears also to be in conclusive and the result is that on the whole evidence be fore us we have difficulty in arriving at a conclusion in respect of the issue involved. 15. IT was observed by the Privy Council in (4) Kumbhan Lakuhman and others vs. Tangirala Veniakeswarlu and others A.I.R. 1949 P.C. 278 that:- "where no difficulty arises in arriving at a conclusion. . . . . the question respecting onus recedes into the back ground, but where the Court finds it difficult to make up its mind the question comes to the foreground and be comes the deciding factor. . . . . . . . . What is called the burden of proof on pleading should not be confused with the burden of adducing evidence which is described as "shifting". The burden of proof on the pleadings never shifts, it always remains constant These two aspects of the burden of proof are embodied in section 101 and 102 respectively of the Indian Evidence Act. . . . When after the entire evidence is adduced the tribunal feels that it cannot make up its mind, as m which of the versions is true, it will hold that the party on whom the burden lies has not discharged the burden, but if it has on the evidence no difficulty in arriving at a definite conclusion then the burden of proof on the pleadings recedes into the background. " 16. " 16. THE Evidence Act does not apply to the industrial adjudications but even so the principle of law enunciated on the burden of proof and onus is a basic principle of law which the industrial tribunals are also required to follow. If there is no sufficient evidence on the part of the petitioner to prove the existence of facts which would only entitle him the reliefs prayed for, it must be held that the petitioner has failed to discharge1 the burden of proof on pleading which lay on him only. As upon the evidence before the tribunal it is difficult for us, as already indicated, to arrive at any conclusion the inevitable consequence follows and there is no alternative but to hold that the petitioner has established no prima facie case and accordingly to dismiss the petition under section 33 A of the Act as not maintain able, as was dune by the Tribunal and the Trial Court though on different findings. The appeal accordingly fails and is dismissed, without any order as. 0 costs in the circumstances. As prayed for by the learned Advocate for the appellant, the operation of this order is stayed for three weeks and the appellant is permitted to stay on in the quarters during this period of three weeks. Appeal dismissed.