Judgment Harish Tandon, J. The challenge is made to an industrial award published by the Industrial Tribunal answering the reference against the union that the 19 persons are not the workmen within the meaning of Section 2(s) of the Industrial Disputes Act. The short question which evolved in this writ petition is whether a person is a workman within the meaning assigned under the Industrial Disputes Act, despite the designation of a supervisor. Before proceeding to deal with the aforesaid issue, it would be profitable to adumbrate more or less admitted facts. The company is engaged in an industrial work employing large number of workmen. A settlement was arrived between the association and the management formulating certain duties and responsibilities of the employees. Some of the employees were designated as a supervisors and the duties to be discharged were clearly indicated in the settlement. It is a case of the union that though they are designated as a supervisors but never performed duties in such capacity and in fact, the duties assigned to them was clerical in nature and, therefore, were treated as the workmen within the definition assigned under Industrial Disputes Act. The management subsequently terminated the services of the 19 workmen whose causes are being espoused by the union in this writ petition after issuing a show cause notices. The union raised an industrial dispute before the appropriate Government and an order of reference was passed on 23rd December, 2002. The reference was further modified by issuing a corrigendum dated. 21st January, 2004, by recasting the same in the following manner: ‘whether the management is justified in terminating the services of workmen appearing at serial No. 1 to serial No. 16 and serial No. 17 in the annexure with effect from 3.4.2002 and those appearing in serial No. 17 and serial No. 19 in the said annexure with effect from 14.05.2002.’ The Industrial Tribunal assumes jurisdiction on the basis of the said order of reference and invited the union as well as the management to file their pleadings. The case of the management is based upon the settlement wherein those 19 persons were appointed as the supervisors and because of such designation, it is stated that they cannot be brought within the purview of the workmen and, therefore, the order of reference is bad. The case of the management is based upon the settlement wherein those 19 persons were appointed as the supervisors and because of such designation, it is stated that they cannot be brought within the purview of the workmen and, therefore, the order of reference is bad. The union maintains the stand that despite having designated as supervisors, they never performed any duties and acted in such capacity and, therefore, mere nomenclature is not a determinant factor. Both sides have cited several witnesses in support of their respective stands, the relevant portion whereof would be narrated while addressing the aforesaid issue hereinafter. The tribunal answered the issue in negative holding that the 19 persons did perform the supervisory duties and, therefore, cannot be treated as a workmen. The union have challenged the said award in this writ petition, that is how, the issue indicated above originates. Mr. Dasgupta, learned advocate appearing for the petitioners, vehemently submits that the duties and responsibilities entrusted upon the said 19 persons, though in a capacity of supervisors, were in fact perennial in nature and the tribunal has wrongly held that they are not workmen. It is strongly submitted that the designation as supervisor is not the sole factor to keep the workmen outside the purview of the definition given under Section 2(s) of the Industrial Disputes Act. It is thus submitted that the relevant factors to arrive at the finding whether a person is a workman or was working in a supervisory capacity is the nature of the duties and responsibilities as well as the control over the subordinate staffs. To fortify the aforesaid submissions, the reliance is placed upon a judgment of the Bombay High Court in case of Bombay Dyeing and Manufacturing Company Limited Vs. R. A. Biddo reported in 1989 (59) FLR 441, a judgment of the Supreme Court in case Arkal Govind Raj Rao v. Ciba Geigy of India Ltd.; Bombay reported in 1985 (2) LLJ 401 , Ananda Bazar Patrika (p.) Ltd. V. The Workmen reported in 1969 (18) FLR 186 and the judgment of the Calcutta High Court in case of Rallis India Ltd. V. State of W.B. & Ors; reported in 1982 (2) LLJ 293. It is further submitted that even if an agreement is entered into between the workers and its union with the management treating the employee in the category of the officer, does not preclude the workmen to raise an issue that they are the workmen as held in case of Guest Keen Williams Ltd. Vs. Assistant Labour Commissioner, Govt. of W.B. & Ors; reported in 1986 Lab I.C. 1668. Placing reliance upon a judgment of the Bombay High Court in case of Seth Jeejeebhoy Dadabhoy Charity Fund & Ors. v. Farokh Noshir Dadachanji reported in 2005 (107) FLR 345, Mr. Dasgupta contended that it is a duty of the employer to prove that the employee was discharging a managerial, administrative and supervisory duty to prove that they are not the workmen. Mr. Chowdhury, learned advocate appearing for the respondents company, countered the submissions of the petitioner in contending that once the settlement is arrived between the union and the management, such settlement is binding on all the workmen, even if, the minorities do not agree as held in the case of ITC Ltd. Workers’ Welfare Association & Anr. v. Management of ITC Ltd. & another reported in (2002) 3 SCC 411 and in case of Tata Engineering & Locomotive Comp Ltd. V. Their Workmen reported in (1981) 4 SCC 627 . It is further submitted that the duties assigned to the supervisor is clearly spelt out in an agreement entered between the union and the management and once the employee has acted under the agreement, he cannot take a different stand and is further estopped from challenging the same. Mr. Chowdhury would contend that the tribunal have relied upon the clause which contains the nature of the duties to be performed by the supervisors and have rightly held that the aforesaid 19 persons, who were employed as supervisors are not workmen. Lastly it is submitted that the appropriate Government wrongly invoked the jurisdiction in passing the order of reference without applying the reasonable satisfaction over the issue whether the said 19 persons, whose causes are espoused by the union, are the workmen or not. There is no dispute that a settlement was arrived between the union representing the workmen and the management wherein certain employees were designated as supervisors and the duties to be performed is also reflected therein. There is no dispute that a settlement was arrived between the union representing the workmen and the management wherein certain employees were designated as supervisors and the duties to be performed is also reflected therein. It would be profitable to quote the extract from the said settlement applicable in case of a supervisor as recorded by the tribunal in the impugned order, which runs thus :- “The supervisors shall have strict supervision, control and overseeing the performance of workmen and strict control as to their attendance on jobs. Besides, they shall have observance over good manufacturing practices, development, housekeeping etc. They are to do certain other non-derogatory work as assigned to them by the seniors from time to time.” The word ‘supervisor’ in its ordinary sense means a person who oversees the work of others. It necessarily follows that there are persons working under the supervisor who keeps the watch over their work. The supervisor examines and keeps the watch over the subordinates and entrust the duty to see that the work under the industrial unit is in accordance with manual if there is such or in accordance with usual procedure. If the nature of the work is such that it does not require to look after and examine the works of the persons who are subordinate to him, the person cannot be said to be a supervisor. The supervisor, therefore, is to supervise the man and not the plant and machinery. Mere incidental duties to supervise the work when the main duties is clerical in nature will not convert the employment into one in supervisory capacity as held by the Supreme Court in case of Ananda Bazar Patrika (supra) in following words: “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. This principle finds support from the decisions of this Court in South Indian Bank Ltd. V. A.R. Chacko and Management of M/s. May and Baker (India) Ltd. V. Their Workmen. In the present case, we have, therefore, to examine the evidence to see whether the Labour Court is right in holding that, because of the main work of Gupta being clerical in nature, he was not employed in supervisory capacity.” In case of Seth Jeejeebhoy Dadabhoy Charity Fund (supra), the Division Bench of the Bombay High Court was faced with the question whether the designation of an employee as manager would take away from the purview of workmen when the duty entrusted is clerical in nature. The Division Bench held that mere designation does not, ipso facto lead, to a reference that a person is working in a supervisory capacity but the nature of the job entrusted is the determinant factor. It would be relevant to quote paragraph 8 of the said report, which runs thus: “Though the petitioner has been designated as Manager, the allotment of duties noticed above reflects that amongst other duties his work was cleaning and laying the chairs before and after the functions and for that purpose the other 2 peons Sitaram and Sachin were to help him. By this admitted allotment of duties the burden ought to be on the appellants to prove that the respondent was discharging managerial, administrative and supervisory duties. The case set up by the present appellants that the respondent has managerial, administrative and supervisory duties has to be established by them. This positive assertion has to be proved by the appellants and for that, the burden has to be placed on the appellants. It is the appellants who raised the objection that the Industrial Court has no jurisdiction as the complainant was not workman having been appointed as manager with managerial, administrative and supervisory duties. This positive assertion has to be proved by the appellants and for that, the burden has to be placed on the appellants. It is the appellants who raised the objection that the Industrial Court has no jurisdiction as the complainant was not workman having been appointed as manager with managerial, administrative and supervisory duties. The burden has to be on the appellants.” It is, therefore, clear that the nomenclature of the post does not automatically bring the status of the person as supervisor. The nature of the work performed is a relevant factor to arrive at the finding whether a person is a workman or not, even if, he is designated as supervisor. In order to decide the status of an employee, the designation is not decisive and what is required to be considered is a nature and the duties of the functions assigned to the employees concerned and if it appears that the employee was doing mainly a clerical work and was occasionally discharging some duties of supervisory nature, does not mean that the person is supervisor so as to take him away from the ambit of the workmen defined under Section 2(s) of the Act. In case of Bombay Dyeing & MFG. Company Ltd; (supra), the Division Bench of the Bombay High Court was considering a matter where a person was appointed as technician but the duties and job entrusted was clerical in nature and it is held that mere employment in technical capacity and getting certain concessions or perquisites does not exclude the person from the purview of the workman in these words: “We are also of the opinion that the fact that some of the concessions and perquisites, which are normally given to persons employed in a technical capacity, were given to the respondent is not relevant or material in holding that he was employed in a technical capacity. It may be, the employers thought that the respondent was a technician and he should be given certain concessions or perquisites. It may also be that those concessions or perquisites were given to him because of the nature of the work which the respondent was doing rather than the capacity in which he was employed. It may be, the employers thought that the respondent was a technician and he should be given certain concessions or perquisites. It may also be that those concessions or perquisites were given to him because of the nature of the work which the respondent was doing rather than the capacity in which he was employed. Similarly, the fact that the respondent is a member of the association of technicians in the Company is not of such crucial importance as to hold that the respondent is a person employed in a technical capacity. In any case, in the absence of basic material relating to the nature of the work performed by the respondent, it has not been possible for us to differ with the concurrence finding given by the two Courts below that the respondent, in the instant case, is not a person employed in a technical capacity.” The aforesaid proposition can further be fortified from a judgment of this Court in case of Rallis India Ltd. (supra) in the following:- “It has been held in that case that an employee doing mainly clerical work and occasionally discharging some duties of supervisory nature in a workman as defined in S. 2(s) of the Act. In the light of the aforesaid decisions, it must also be held that a claim of the employee concerned in a different contracts for getting redress of his grievances or asserting right to obtain certain clarification from the authority as in this case that he is a member of the management staff is not decisive of the real status of the employee. What has to be considered is whether he was mainly performed the clerical or managerial/administrative function. The fact that Sri Kundu was a member of the employees’ Union before he got appointment as supervisor and ceased to be so after he got such appointment is also not germane to the decision of his status under S.2 (s) of the Act.” The impugned order would reveal that the tribunal have simply proceeded on the basis of the duties and responsibilities of the supervisors incorporated in the settlement without venturing to find out whether such duties and responsibilities were entrusted to the employees though designated as supervisor. It is a specific case of the union in the pleadings as well as the evidence that the nature of the work performed by the said 19 employees was not in supervisory capacity and was simply clerical in nature as they do not have any power to allot the duties to the workmen, take an action against the erring workmen nor were empowered to assign the specific duties to the workmen. The evidence adduced on behalf of the union was uniform as they categorically asserted that none of those 19 employees ever supervised any subordinate staff. The evidence of OPW 1 on behalf of the management is pertinent in this regard that he categorically stated that no documents have been filed to show that the clerical staffs and other workers along with the sardars are working under their supervision. It is further said that no document is filed to show that anyone of the disputing staff allotted any job to any worker or to select the workers or allot over time job nor filed any document which would suggest that those 19 employees were empowered to initiate any disciplinary proceedings against any worker. In the cross-examination it is stated that there are documents to show that the said 19 terminated employees were empowered to look after the performance of ordinary employees working in the company. It does not appear from the documents annexed to the writ petition as well as from the impugned award that any such documents were filed on behalf of the management which may throw light on the core issue that those 19 employees were discharging duties in a supervisory capacity. The burden to prove that the employee is not a workman and was in fact working in a supervisor capacity, lies on the employer. The support can be lend to a judgment of this Court in case of Rallis India Ltd.(supra) where a presumption was raised as to the existence of industrial dispute, the moment the reference under Section 10 of the Act is made by the appropriate Government. It would be relevant to quote the following excerpts from the said report, which runs thus: “In Reckitt Coleman of India Ltd. V. 5th Industrial Tribunal 1980 Lab. It would be relevant to quote the following excerpts from the said report, which runs thus: “In Reckitt Coleman of India Ltd. V. 5th Industrial Tribunal 1980 Lab. IC 92 (at page 95, para 7), it has been held by a Division Bench of the Court that when a reference is made under S.10 of the Industrial Disputes Act there is a presumption of existence of industrial dispute. For the purpose of rebutting the presumption evidence is required to be adduced by the employer I respectfully agree with this view and hold that the Tribunal has not erred in law in placing the burden of proof on the Company to rebut the presumption that Sri Kundu was a workman and dispute was an industrial dispute. In fact PW-1 who was cross-examined in part on the point of existence of papers to show that Sri Kundu used to get jobs done by others on 20th November, 1980 got sufficient time to produce such papers if any when he was next cross-examine on 22nd December, 1980, but no such papers were produced by the Company before the Tribunal. There is no question of shifting of onus when the initial onus of burden of proof was on the company to establish that Sri Kundu had administrative or managerial function. More over, when evidence has been adduced by the contesting parties on the question in controversy abstract considerations of onus are out of place and the truth or otherwise of the case must always be adjudged on the evidence led by the parties (see Kalwa Devadattam v. Union of India, AIR 1964 SC 880 ).” There is a complete silence on the part of the management as to what exact duties and responsibilities were given to each of those 19 employees. Though the witnesses suggest that they have a documents to show the exact nature of the duties of those 19 employees to be supervisory in nature but no documents are forthcoming to prove conclusively that the nature of the duties was supervisory. The learned advocate for the respondents heavily relies upon the judgment of the case of Tata Engineering & Locomotive Comp Ltd. V. Their Workmen reported in (1981) 4 SCC 627 in support of the contention that the parties cannot resile from a resettlement/agreement merely on the ground that it is not just and fair. The learned advocate for the respondents heavily relies upon the judgment of the case of Tata Engineering & Locomotive Comp Ltd. V. Their Workmen reported in (1981) 4 SCC 627 in support of the contention that the parties cannot resile from a resettlement/agreement merely on the ground that it is not just and fair. The question involved in the said report is whether the settlement arrived by the union of the majority workers can be impugned on the plea that it is not just and fair at the instance of the minority workers. The Supreme Court held if the settlement is arrived with the eyes open, it binds the parties and, therefore, cannot be impugned that it is just and fair in these words :- “The conclusion reached by the Tribunal that the settlement was not just and fair is again sustainable. As earlier pointed out, the Tribunal itself found that there was nothing wrong with the settlement in most of its aspects and all that was necessary was to marginally increase the additional daily wage.” Even in case of The Workmen & Ors. v M/s Hindustan Lever Ltd. reported in (1984) 1 SCC 728 , the Supreme Court held that once the agreement is subsisting and valid, it binds both the parties. The aforesaid judgment is not pointer to an issue whether a person can raise a dispute that even if their designation is supervisor still they are the workmen within the meaning given under Section 2(s) of the Act. The Apex Court in the said report further held that whether a particular person was an workman or not, depends upon the factual matrix. The aforesaid proposition can further be fortified from the judgment of the Supreme Court rendered in case of ITC Ltd. Workers’ Welfare Association & another (supra) wherein it is held that the agreement if found valid, binds the parties and can only be impugned in a well recognized legal parameters. The aforesaid judgments relies upon by the respondents is of no help as none of the parties have challenged the settlement either on the ground of unfairness or invalidation. The aforesaid judgments relies upon by the respondents is of no help as none of the parties have challenged the settlement either on the ground of unfairness or invalidation. Though the nature of the duties are indicated in the said settlement but when the disputes are raised over the actual duties and responsibilities entrusted on those 19 employees, the tribunal should not have simply proceeded by placing reliance upon the said settlement and to arrive at the finding that the said 19 workers are in fact supervisors, having kept outside the purview of the definition of the workman given under Section 2(s) of the Act. As noted above, the deposition of the employer in this regard is silent though the witness categorically asserts that they have documents to prove the exact nature of duties and responsibilities entrusted upon the said 19 employees to show that they were acting in supervisory capacity as opposed to the duties and responsibilities of the workmen. Since the question is one of the evidence, this Court feels that the matter should be remanded to the tribunal for fresh decision after affording an opportunity to the union and the management to adduce further evidence in this regard. This Court, therefore, set aside the impugned order. The matter is remanded to the tribunal who shall decide the matter afresh after giving an opportunity to the union and the management to adduce further evidence in relation to the exact nature of duties and responsibilities of those 19 employees. With these observations, the writ petition is disposed of. However, there shall be no order as to costs.