JUDGMENT : K.M. Thaker, J. 1. When the matter is called out and taken up for hearing, the learned advocate for the petitioner is not present in the second session/second sitting also, however, Mr. Vasavada, learned advocate for the respondent, is present. 1.1 Considering the nature of the dispute involved in the petition i.e. the subject matter of the dispute - which is already decided by the Division Bench (and Special Leave Petition is dismissed) and considering the fact that the petition is filed in 2011 and is pending since 5 years and that it has been adjourned 23 times, the Court deems it proper to decide the petition on merits instead of adjourning the proceedings on the ground of absence of the petitioner's advocate. 1.2 In this view of the matter, the Court has considered it appropriate to decide the matter on merits after considering the material available on record and the contentions raised in the petition. 2. Heard Mr. Vasavada, learned advocate for the respondent. 3. Before proceeding further, it is appropriate and necessary to mention that the learned advocate for the respondent submitted that in view of the decision dated 27.11.2014 passed in Letters Patent Appeal No. 1159 of 2014 and connected matters, wherein it is held that the persons working on the posts of Deputy Engineer and Executive Engineer and higher posts in the petitioner-board do not come within the meaning of term "Workman" as defined under Section 2(s) of the Industrial Disputes Act, 1947, and the Special Leave Petition against the said decision is rejected by Hon'ble Apex Court, the petitioner's objection against the reference case and the awards stands decided and concluded and thereby the subject matter of present petition does not require further or fresh adjudication on merits and the matter can be disposed of in light of the said decision inasmuch as the persons employed in the category/cadre of Deputy Engineer and Executive Engineer and above do not come within the purview of the term "workmen" and that therefore, the reference case i.e. Reference (IT) No. 120 of 1997 was not maintainable and the learned Tribunal could not have entertained it and could not have passed award in respect of the respondent, who, at the relevant time, was employed as Executive Engineer. 4. 4. In Letters Patent Appeal No. 1159 of 2014, Hon'ble Division Bench has held that persons working on the post of Deputy Engineer and above do not come within the meaning of the term "workman" as defined under Section 2(s) of the Act. In present case, it is an undisputed fact that, at the relevant time, the petitioner was working as, and was holding the post of, Executive Engineer. Consequently, he would not come within the purview of the term "workman". 4.1 In this view of the matter, the respondent herein could not have raised "industrial dispute" and the appropriate Government could not have referred the grievance of the respondent for adjudication to the learned Tribunal and the learned Tribunal could not have treated the grievance of the respondent as "industrial dispute" under Section 2(k) and could not have adjudicated and decided the grievance of the respondent. The learned Tribunal failed to appreciate the said aspect though a specific objection on that ground was raised by the petitioner. 5. In view of the said submission by learned advocate for the respondent, detailed examination of the contentions raised in the petition or detailed adjudication of the matter is not required. 6. In present case, the petitioner-board is aggrieved by the judgment and order dated 29.03.2011 passed by learned Industrial Tribunal, Ahmedabad in Reference (IT) No. 120 of 1997, whereby the learned Tribunal set aside the warnings issued against the respondent pursuant to disciplinary proceedings and also directed the petitioner to release and pay higher pay-scale to the respondent from 1.8.1978 with all consequential benefits. 6.1 After being employed in the category of officer at salary of more than Rs. 1,600/- p.m., the employee concerned in said reference No. 120 of 1997 was promoted from time to time to the post of Dy. Engineer and then to the post of Executive Engineer and thereafter, the concerned employee i.e. the respondent retired from the service. 7. The respondent initiated the proceedings against present petitioner with regard to warnings issued against him in 1975 and 1978, as late as in 1997, i.e. almost after two decades. The proceedings were infected not only by such gross and inordinate delay, but also by the fact that the grievance was raised by person who, as held by Hon'ble Division Bench vide judgment dated 27.11.2014, cannot be termed and considered as "workman". 8. Despite such defects, viz. The proceedings were infected not only by such gross and inordinate delay, but also by the fact that the grievance was raised by person who, as held by Hon'ble Division Bench vide judgment dated 27.11.2014, cannot be termed and considered as "workman". 8. Despite such defects, viz. (a) gross and inordinate delay in raising the grievance, and (b) the fact that the claimant could not have raised industrial dispute - he being a non-workman - and he could not have been termed as workman, the order of reference came to be passed and even the learned Tribunal adjudicated the reference. Now, the petitioner has taken out present petition against the award passed by the learned Tribunal and claimed that the order of reference as well as the proceedings before the learned Tribunal [i.e. proceedings related to Reference (IT) No. 120 of 1997] were not maintainable. 9. So far as factual background is concerned, it has emerged from the record that while the respondent herein was serving as Deputy Engineer, two charge-sheets were issued against him in 1974. With reference to the said charge-sheets, domestic inquiry were conducted and on conclusion of the domestic inquiry proceedings, the respondent was visited with penalty by way of warning and a strict warning vide orders dated 20.12.1975 and 20.3.1978. 10. At this stage, it is pertinent to mention that it is against the said orders issuing warning and strict warning that the respondent had initiated proceedings in question in 1997 which was registered as Reference (IT) No. 120 of 1997. 11. In view of the fact that the respondent was visited with penalty, he was not considered fit for higher pay-scale at the time when he completed the required years of service. In this context, the petitioner has averred and stated in the petition that:- "2.4 It appears that at the time when the concerned employee approached the Hon'ble High Court of Gujarat for seeking promotion, he did not challenge the warning and strict warning issued to him in pursuance to the earlier two charge-sheets. In fact, the said two orders of issuing warranting and strict warning became final and at the relevant point of time, the concerned employee did not challenge the same and accepted the said warnings. In fact, the said two orders of issuing warranting and strict warning became final and at the relevant point of time, the concerned employee did not challenge the same and accepted the said warnings. 2.5 For the incidence/cause of action of the year 1974, the concerned employee through respondent union raised industrial dispute in the year 1997 challenging warning and strict warning issued to him in pursuance to the two charge-sheets. 2.6 The matter came to be referred to the learned Industrial Tribunal for adjudication being Reference (IT) No. 120 of 1997. The respondent filed its statement of claim before the Industrial Tribunal. .... The petitioner filed its written statement pointing out true and correct facts. It was also pointed out that in fact on 01.02.1979 higher grade pay-scale was granted and now the concerned employee is not entitled to any relief. It was also pointed out that the concerned employee being Executive Engineer cannot be termed as workman and therefore, the Reference is not tenable at law. The petitioner also produced certain documents such as warnings issued to the concerned employee. It is submitted that as per GSO 253, in view of warnings issued to the concerned employee, he was rightly granted higher pay-scale after six months. The concerned employee came to be examined before the learned Industrial Tribunal. The petitioner filed GSO 325/A before the learned Industrial Tribunal showing revision of pay-scale. ... It was also pointed out that pay-scale of the concerned employee was Rs.10,400 – Rs.15,525 with effect from 01.01.1996." 12. Before proceeding further, it is relevant to mention that with a view to illustrating and emphasizing effect of the award, the petitioner has, through its officer, filed an affidavit dated 7.12.2011 and stated, inter alia, that:- "2. I state that by the impugned award the learned Industrial Tribunal, Ahmedabad has been pleased to direct the petitioner to give benefits of higher pay-scale to Shri R.B. Shah by fixing his higher pay-scale on 01.08.1978. I state that in view of warning and strict warning given to Shri Shah, higher pay-scale was granted to Shri Shah on 01.02.1979. It is submitted that promotion from Deputy Engineer to Executive Engineer is considered on the basis of date of grant of pay-scale in terms of GSO 253 read with Establishment Circular 312. I state that in view of warning and strict warning given to Shri Shah, higher pay-scale was granted to Shri Shah on 01.02.1979. It is submitted that promotion from Deputy Engineer to Executive Engineer is considered on the basis of date of grant of pay-scale in terms of GSO 253 read with Establishment Circular 312. It is submitted that in view of grant of pay-scale on 01.08.1978 to Shri Shah, all subsequent date of promotion of Shri Shah, i.e. from Deputy Engineer to Executive Engineer, from Executive Engineer to Superintending Engineer and from Superintending Engineer to Additional Chief Engineer would be changed. It is submitted that Shri Shah has retired as Additional Chief Engineer. It is submitted that in view of the impugned award, the entire seniority in all these cadres will be changed and there will be huge financial implication about Rs.3,00,000/- to the petitioner company. It is submitted that since the matter relates to the year 1978, exact calculations are not available at present in view of the old records; however, considering promotions given to Shri Shah at the relevant point of time, said implications will be about Rs.3,00,000/-." 13. In this petition also, the petitioner has expressly raised contention against maintainability of the reference proceedings as well as propriety of the order of reference and has averred and contended that:- "(e) The learned Tribunal has failed to appreciate that the concerned employee was working as Executive Engineer when Reference was made. The Executive Engineer cannot be termed as workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1947." 14. With reference to the respondent's claim for higher pay-scale, the petitioner has averred and stated in the petition that:- "(j) The learned Labour Court has failed to appreciate that the Clause 1(I) of GSO 253 clearly provides that, overall performance has to be taken in to consideration for grant of Nine Year Higher Grade. The format annexed to GSO 253 dated 26.12.1973 also provides at Point No. 10 that "The details as to whether any disciplinary action taken against the employee during the nine years' period and if so, the nature of punishment." This indirectly implies that the concerned employee's record should have been cleared to be eligible for grant of nine year higher grade under GSO 253. This aspect was also further streamlined vide Note approved by the then Chairman dated 10.02.1985. This aspect was also further streamlined vide Note approved by the then Chairman dated 10.02.1985. As in case of departmental action during the span of nine years, if charge sheet is concluded into warning, the above clause is to be taken into consideration while granting nine year higher grade." 15. As mentioned hereinabove, it is not in dispute that at the time i.e. when domestic proceedings were instituted against the respondent, the respondent was working as Deputy Engineer and at the relevant time, the respondent was working as and holding the post as Executive Engineer and he retired as such. Having regard to the said factual aspect and the decision by Hon'ble Division Bench dated 27.11.2014 in Letters Patent Appeal No. 1159 of 2014, the order of reference and the proceedings of reference (IT) No. 120 of 1997 were defective and not maintainable, inasmuch as the order of reference was passed at the behest of a person who, cannot be termed "workman" as defined under Section 2(s) of the Act and that therefore, he could not have raised "industrial dispute" under the provisions of the Act and his grievance could not have been referred by the appropriate Government. Despite such undisputed fact that the claimants, at the relevant time was in the category of non-workman inasmuch as he was employed as Executive Engineer and prior to that i.e. at the time when domestic proceedings were instituted against the petitioner, he was working as Deputy Engineer, the appropriate Government referred the dispute vide order of reference dated 25.4.1997 and the learned Tribunal, without appreciating the objection, entertained the said reference though specific objection against maintainability of the reference was raised by the petitioner. 16. Actually, on the ground that the order of reference could not have been passed at the behest of and/or in respect of the grievance of non-workman i.e. present respondent and in light of the fact that the reference was not maintainable and the claim by non-workman could not have been adjudicated, the award is rendered defective. The award impugned in present petition is passed by the learned Tribunal without jurisdiction or by exercising jurisdiction arbitrarily or by exercising jurisdiction not conferred on it. 17. The award impugned in present petition is passed by the learned Tribunal without jurisdiction or by exercising jurisdiction arbitrarily or by exercising jurisdiction not conferred on it. 17. It is pertinent to note that though a specific objection was raised by the petitioner, the learned Tribunal did frame an issue for purpose of its decision with regard to the said objection and without dealing with the said contention, the learned Tribunal proceeded to adjudicate the reference and then passed the impugned award. Since the impugned award is passed by the learned Tribunal in respect of a person who cannot be termed workman, the award is not sustainable and deserves to be set aside on that ground alone. 18. Though it is true that the grievance was raised after gross and inordinate delay and that too without offering any explanation as regards the delay, it is not necessary to enter into the said grievance of the petitioner on the ground that the learned Tribunal ought not have entertained the grievance after such inordinate delay. 19. Even learned counsel for the respondent fairly submitted at the outset that there is no need to adjudicate the dispute with regard to the respondent's claim for higher pay-scale and/or the grievance against the warnings more particularly in present proceedings because the reference could not have been entertained, and in light of the decision by Hon'ble Division Bench in Letters Patent Appeal No. 1159 of 2014, the respondent cannot justify the award. Learned counsel for the respondent has fairly not made any submissions on merits and instead, he submitted that the appropriate order may be passed in light of the judgment dated 27.11.2014 in Letters Patent Appeal No. 1159 of 2014. 20. It would be appropriate to refer to the decision by the Court in Special Civil Application No. 13751 of 2004 dated 1.12.2004 wherein the Court observed and held, inter alia, that:- "3. The respondent herein had strongly resisted the reference before the Labour Court primarily on the ground that the petitioner is not a workman. It was contended that he was discharging duties of supervisory nature. It was pointed out that the petitioner had deliberately not disclosed his designation. The respondent herein had strongly resisted the reference before the Labour Court primarily on the ground that the petitioner is not a workman. It was contended that he was discharging duties of supervisory nature. It was pointed out that the petitioner had deliberately not disclosed his designation. It was contended that he was working as Deputy Engineer and in discharge of his duties which were of supervisory nature, the petitioner enjoyed certain degree of control over several officers working under him, including Junior Engineers, Junior Clerks, Surveyors, Line Inspectors, Linemen, Drivers and Peons. It was contended that all these officials of the respondent worked under the supervision and direct control of the petitioner. The petitioner had powers to sanction their leave. The petitioner used to write their CRs and used to assign duties to them. The petitioner also as and when required was empowered to censure these officials working under him and also to make appropriate report in this regard to the higher authorities. It was also contended that the said employees carried out the task of electrification under the supervision and guidance of the petitioner. It was, therefore, contended that the petitioner was discharging duties as Head of the Department and was therefore not a 'workman' within section 2(s) of the Industrial Disputes Act. The respondent also produced several documents to substantiate these averments. 4. The Labour Court after considering the evidence on record which included primarily the deposition of the petitioner and the documentary evidence produced by the respondent which was also supported by oral evidence of the officer of the respondent came to the conclusion that the duties discharged by the petitioner were of supervisory nature and since admittedly his salary was in excess of Rs. 1600/- per month he cannot be considered as a workman within the meaning of section 2(s) of the Industrial Disputes Act. While appreciating the evidence, oral as well as documentary, the Labour Court found that some of the averments made by the petitioner in his oral deposition are contrary to the documentary evidence produced and proved by the respondent. The Labour Court, in fact, noted that the petitioner had tried to mislead the Court. Thus, considering the entire evidence on record, the Labour Court found that the petitioner discharged duties of supervisory nature and was therefore not a 'workman'. 5. The Labour Court, in fact, noted that the petitioner had tried to mislead the Court. Thus, considering the entire evidence on record, the Labour Court found that the petitioner discharged duties of supervisory nature and was therefore not a 'workman'. 5. Having considered the submissions made by the learned counsel for the petitioner and having examined the award of the Labour Court, it is not possible to interfere with the findings of the Labour Court. As noted above, admittedly, the petitioner was engaged as Deputy Engineer by the respondent. Admittedly, his pay was more than Rs. 1600/- per month. The finding of the Labour Court that the evidence on record establishes that the petitioner was discharging duties of supervisory character also cannot be interfered with. I am in agreement with the view of the Labour Court and I find that there is substantial evidence on record to suggest that the petitioner was enjoying control over several subordinates who are working under him. The attempt on the part of the counsel for the petitioner to show that the powers of the petitioner were withdrawn on the basis of communication dated 23rd June 1999 also cannot be of any avail to the petitioner. The said communication only suggests that some other officer was asked to take over the charge of ongoing works from the petitioner. The background in which the said decision was taken is not clear. However, the said communication can only mean that for some internal reasons, the charge of the works otherwise being carried on by the petitioner was handed over to some other officer. That by itself would not divest the petitioner of his character of an officer of the respondent who is otherwise vested with supervisory powers. 6. In the result, I find that the Labour Court was perfectly justified in coming to the conclusion that the petitioner was not a 'workman' within meaning of section 2(s) of the Industrial Disputes Act. I find no infirmity in the impugned award. Hence the petition is rejected." 21. Having regard to the above aspects and for the foregoing reasons, and taking into consideration the findings and conclusions recorded by the learned Tribunal, the decision of the learned Tribunal and the final direction issued by the learned Tribunal are erroneous and unsustainable and contrary to the decision dated 27.11.2014 passed in Letters Patent Appeal No. 1159 of 2014. Having regard to the above aspects and for the foregoing reasons, and taking into consideration the findings and conclusions recorded by the learned Tribunal, the decision of the learned Tribunal and the final direction issued by the learned Tribunal are erroneous and unsustainable and contrary to the decision dated 27.11.2014 passed in Letters Patent Appeal No. 1159 of 2014. Therefore, impugned award is not sustainable and deserves to be set aside. For the aforesaid reasons, the impugned award dated 29.03.2011 passed by the learned Tribunal in Reference (IT) No. 120/97 is hereby set aside and the petition is allowed. Rule is made absolute to the aforesaid extent.