JUDGMENT Hon’ble Ram Surat Ram (Maurya), J.—Heard Sri Kartikeya Saran, alongwith Sri Akshay Mohiley, for the petitioner and Miss Bushra Maryam, for respondent-3. 2. The writ petition has been against the award of Industrial Tribunal, dated 10.10.2017 (published on 27.12.2017), holding the termination of service of respondent-3, by order of the petitioner, dated 28.12.2015, w.e.f. 1.11.2015 was in violation of Section 6-N of U.P. Industrial Disputes Act, 1947 (hereinafter referred to as “the Act”) and directing for his reinstatement in service with full back wages and other benefits. 3. On the application of Sikandar Sharma @ Surendra Sharma (respondent-3), Deputy Labour Commissioner referred the dispute “whether termination of services of Sikandar Sharma @ Surendra Sharma, by order dated 28.12.2015 was legal and proper? If no, for what relief, the workman was entitled?” for adjudication of Industrial Tribunal under the Act, where it was registered as Adjudication Case No. 17 of 2016. On the notice being issued, respondent-3 filed his written statement alongwith affidavit, stating therein that M/S Supertech Limited (the petitioner), is a commercial establishment, engaged in business to provide avenues to other traders to do business at national/international level. He was appointed as ‘Supervisor (civil)’ on 21.4.2011, in maintenance department of the petitioner. Since then, he was regularly discharging repair/maintenance work, to the full satisfaction of the petitioner. The petitioner also gave appraisal letters time to time to respondent-3, for his good works. On 1.11.2015, respondent-3 took leave from his superior officer, due to his personal work. On 2.11.2015, respondent-3 went on duty and after endorsing his attendance, he worked for about one hour, then by an oral order, he was stopped from discharging duties. Respondent-3 met with his higher officers on 9.11.2015 and 17.11.2015, then they asked him to tender a written apology. As directed, respondent-3 gave written apology but he was not taken back in service. The petitioner wrote letters dated 20.11.2015 and 17.12.2015, of which reply were given through registered letters. Ultimately, by order dated 28.12.2015, services of respondent-3 were terminated w.e.f. 1.11.2015. He had worked for more than 240 days continuously in a calendar year and acquired the status of ‘workman’. No proceeding for termination of service under the law has been followed and termination of his service was illegal. From the date of termination of service, he was unemployed. He was entitled for reinstatement in service with full back wages and continuity of service. No proceeding for termination of service under the law has been followed and termination of his service was illegal. From the date of termination of service, he was unemployed. He was entitled for reinstatement in service with full back wages and continuity of service. 4. The petitioner filed its written statement and stated that services of the petitioner was terminated w.e.f. 1.11.2015, while reference for decision is for termination from 28.12.2015, as such there is no proper reference. Respondent-3 was not a ‘workman’ within the meaning of the Act, inasmuch as he was appointed as ‘Supervisor’ and holding a supervisory post. He has not worked more than 240 days in any calendar year as such did not acquire status of workman. Reference was not maintainable. M/S Supertech Limited (the petitioner) is an establishment of Shopics Mall and was an associate of several other commercial establishment to provide avenues to do business at national/international level, for which several employees were appointed. Respondent-3 was appointed as ‘Supervisor (civil)’ on 21.4.2011, in maintenance department. His work was of great importance. His minor negligence may cause heavy loss to the employer, which may dimness its reputation. The work and conduct of respondent-3 during his employment was never satisfactory. He used to become absent from duty without any information, for which several warnings were given to him. On 1.11.2015, he had become absent without any information. In spite of several phone calls, he did not turn up on duty as such show cause notice dated 24.11.2015 was given to him, giving warning that in case, he did not return on duty them disciplinary proceeding would be taken against him. In spite of show cause notice, respondent-3 did not turn up on duty, which proves irresponsible and indiscipline attitude of respondent-3. Then second show cause notice was given to respondent-3 on 19.12.2015. Even then respondent-3 did not turn up on duty as such his services were terminated w.e.f. 1.11.2015 through letter dated 28.12.2015. Due to unauthorized absence from duty, the petitioner has to suffer huge loss. Respondent-3 voluntarily left the services. The petitioner also filed a rejoinder in reply to written statement of respondent-3. 5. Respondent-3 filed some documentary evidence and examined himself as WW-1. On behalf of the petitioner, Rakesh Singh was examined as EW-1. Due to unauthorized absence from duty, the petitioner has to suffer huge loss. Respondent-3 voluntarily left the services. The petitioner also filed a rejoinder in reply to written statement of respondent-3. 5. Respondent-3 filed some documentary evidence and examined himself as WW-1. On behalf of the petitioner, Rakesh Singh was examined as EW-1. Industrial Tribunal, after hearing the parties, by impugned award, found that work of respondent-3 was not of supervisory in nature as such he was a ‘workman’ within the meaning of the Act. No disciplinary proceeding was initiated by the petitioner before termination of services of respondent-3. Termination of services with retrospective effect is illegal. Termination of services due to absence from duty for a short period was illegal. Respondent-3 was unemployed after his termination from service as such he was entitled to full back-wages. On these finding, termination of service of respondent-3 by order dated 28.12.2015, w.e.f. 1.11.2015 was held illegal and he was directed to be reinstated in service with back-wages and other benefits. Hence, this writ petition has been filed. 6. The counsel for the petitioner submitted that respondent-3 was appointed as ‘Supervisor’ on a salary of Rs. 11,500/- per month. He was holding supervisory powers such as he was in-charge of plumbering work and other employees has to work under his direction and control. He was authorized to sanction leave to the staff working under him and terminate his services. As he was holding a supervisory post as such he cannot be treated as ‘workman’ within the meaning of the Act. Reference was not maintainable. The work and conduct of respondent-3 during his employment was never satisfactory. He used to become absent from duty without any information, for which several warnings were given to him. On 1.11.2015, he was absent without any information. In spite of several phone calls, he did not turn up on duty as such show cause notice dated 24.11.2015 was given to him, giving warning that in case, he did not turn up for duty then disciplinary proceeding would be taken against him. In spite of show cause notice, respondent-3 did not turn up for duty. Then second show cause notice was given to respondent-3 on 19.12.2015, of which also no reply was given by him. In the absence of respondent-3, the petitioner had no other option, except to terminate his services from the date of absence. In spite of show cause notice, respondent-3 did not turn up for duty. Then second show cause notice was given to respondent-3 on 19.12.2015, of which also no reply was given by him. In the absence of respondent-3, the petitioner had no other option, except to terminate his services from the date of absence. Before termination of service, two notices were issued to respondent-3 thus opportunity to show cause was given to respondent-3. So far as finding of tribunal that termination order was passed with retrospective effect, is concerned, as respondent-3 voluntarily absented from duty from 1.11.2015 as such he was not entitled for salary during his absence period. Award of Labour Court is illegal and liable to be set aside. He relied upon judgment of Supreme Court in S.K. Maini v. Carona Sahu Co. Ltd., (1994) 3 SCC 510 , in which it has been held that in the event of helper being absent, the shop manager is also empowered to appoint part-time sweeper and to entrust the work of a helper to a sweeper. Such functions, in our view, appear to be administrative and managerial. By virtue of his being in-charge of the shop, he was the principal officer-in-charge of the management of the shop. We therefore find justification in the finding of the High Court that the principal function of the appellant was of administrative and managerial nature. It is true that he himself was also required to do some works of clerical nature but it appears to us that by and large Shri Maini being in-charge of the management of the shop had been principally discharging the administrative and managerial work. A manager or an administrative officer is generally invested with the power of supervision in contradistinction to the stereotype work of a clerk. Constitution Bench of Supreme Court in H.R. Adyanthaya v. Sandoz (India) Ltd., (1994) 5 SCC 737 , in which it has been held that the object of the legislation further appears to be to give protection of the service conditions to the weaker Section of the employees belonging to the said category. Constitution Bench of Supreme Court in H.R. Adyanthaya v. Sandoz (India) Ltd., (1994) 5 SCC 737 , in which it has been held that the object of the legislation further appears to be to give protection of the service conditions to the weaker Section of the employees belonging to the said category. The legislature at that particular time thought that it was not either necessary to extend the said protection to all the employees belonging to the said category irrespective of their income or that at that stage the circumstances including the conditions and the nature of the employment and the sales business or operation did not warrant protection to the economically stronger Section of the said employees, and that conomically weaker among them alone needed the protection. Hence it cannot be said that the classification made of the said employees on the basis of their income had no rational nexus with the object sought to be achieved, viz., the protection of the weaker Section of the said employees. The extension of the protective umbrella could not as a matter of right, therefore, be demanded by those who drew more wages. Even in the definition of the workman under the Industrial Disputes Act, 1947 as well as under the very Sales Promotion Employees (Condition of Service) Act, 1976 the classification of those employed to do supervisory work has been made on the basis of their monthly income although the work done by the two Sections of the workmen is the same, viz., supervisory and those drawing wages above the particular limit have been excluded from the said definition. According to us, it is permissible to classify workmen on the basis of their income although the work that they do is of the same nature. The protective umbrella need not cover all the workmen doing the particular type of work. It can extend to them in stages. At what stage which of the said Section of the employees should come under the said umbrella is a matter which should be left to the legislature which is the best judge of the matter. Talwara Coop. Credit and Service Society Ltd. v. Sushil Kumar, (2008) 9 SCC 486 , in which it has been held that grant of a relief of reinstatement, it is trite, is not automatic. Grant of back wages is also not automatic. Talwara Coop. Credit and Service Society Ltd. v. Sushil Kumar, (2008) 9 SCC 486 , in which it has been held that grant of a relief of reinstatement, it is trite, is not automatic. Grant of back wages is also not automatic. The Industrial Courts while exercising their power under Section 11-A of the Industrial Disputes Act, 1947 are required to strike a balance in a situation of this nature. For the said purpose, certain relevant factors, as for example, nature of service, the mode and manner of recruitment viz. whether the appointment had been made in accordance with the statutory rules so far as a public sector undertaking is concerned, etc., should be taken into consideration. For the purpose of grant of back wages, one of the relevant factors would indisputably be as to whether the workman had been able to discharge his burden that he had not been gainfully employed after termination of his service. Judgment of this Court in State of U.P. v. Raj Kumar, 2014(4) ADJ 1320, in which it has been held that burden of proof is upon an employee to prove that he was unemployed after termination of his services. 7. I have considered the arguments of the counsel for the parties and examined the record. Judgment of this Court in State of U.P. v. Raj Kumar, 2014(4) ADJ 1320, in which it has been held that burden of proof is upon an employee to prove that he was unemployed after termination of his services. 7. I have considered the arguments of the counsel for the parties and examined the record. Workman has been defined under Section 2 (z) of the Act, which is quoted below : Section 2 (z) “workman” means any person (including an apprentice) employed in any industry to do any skilled or unskilled manual, supervisory, technical or clerical 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 any Army Act, 1950 or Air Force Act, 1950 or the Navy (Discipline) Act, 1934; or (ii) who is employed in the police service or as an officer 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 five thousand 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. 8. Similar definition of ‘workman’ has been given in Section 2 (s) of Industrial Dispute Act, 1947. Supreme Court in Lloyds Bank Ltd. v. Panna Lal Gupta, AIR 1967 SC 428 , has held that the question as to whether an employee holds a supervisory post or not frequently arose for decision before Industrial Courts under the original definition of a workman in the Industrial Disputes Act. Section 2(s) as it originally stood defined a workman as meaning, inter alia, any person employed (including an apprentice) in any industry to do any skilled or unskilled, manual or clerical, work for hire or reward. Section 2(s) as it originally stood defined a workman as meaning, inter alia, any person employed (including an apprentice) in any industry to do any skilled or unskilled, manual or clerical, work for hire or reward. Under this definition, on many occasions the employers claimed that the workmen concerned were officers or members of the supervisory staff and as such did not fall under Section 2(s), and workmen contended that they were doing merely clerical or mechanical work and did not fall in the class of officers or supervisors. Dealing with such disputes Industrial Courts generally considered the essence of the matter and did not attach undue importance to the designation of the employee or the name assigned to the class to which he belonged. It was always a matter of determining what the primary duties of an employee were — did he do clerical or manual work?; if the answer was in the affirmative he was a workman; — were his duties of a supervisory nature?; if the answer was in the affirmative he was not a workman. In considering the latter aspect of the problem industrial adjudication generally took the view that the supervisor or officer should occupy a position of command or decision and should be authorised to act in certain matters within the limits of his authority without the sanction of the Manager or other supervisors. 9. In Burmah Shell Oil Storage and Distribution Co. of India Ltd. v. Burma Shell Management Staff Assn., (1970) 3 SCC 378 , held that in order to decide whether the decision of the Tribunal with respect to the various categories is correct, it is necessary to consider the definition of “workman” in the Act as amended by Industrial Disputes Amendment Act, 36 of 1956. For an employee in an industry to be a workman under this definition, it is manifest that he must be employed to do skilled or unskilled manual work, supervisory work, technical work or clerical work. If the work done by an employee is not of such a nature, he would not be a workman. For an employee in an industry to be a workman under this definition, it is manifest that he must be employed to do skilled or unskilled manual work, supervisory work, technical work or clerical work. If the work done by an employee is not of such a nature, he would not be a workman. Mr Chari on behalf of the Association, however, put forward the argument that this definition is all comprehensive and contemplates that all persons employed in an industry must necessarily fall in one or the other of the four classes mentioned above and, consequently, the Court should proceed on the assumption that every person is a workman; but he may be taken out of the definition of “workmen” under the four exceptions contained in the definition. The two exceptions with which we are primarily concerned are Exceptions (iii) and (iv). Under Exception (iii), even a workman, who is employed mainly in a managerial or administrative capacity, goes out of the definition of “workmen”, while under Exception (iv), persons, who are employed in a supervisory capacity, go out of the definition, provided they either draw wages exceeding Rs 500 per mensem or exercise, by the nature of the duties attached to the office or by reason of the powers vested in them, functions mainly of a managerial nature. In Anand Regional Coop. Oil Seedsgrowers’ Union Ltd. v. Shaileshkumar Harshadbhai Shah, (2006) 6 SCC 548 , held that supervision contemplates direction and control. While determining the nature of the work performed by an employee, the essence of the matter should call for consideration. An undue importance need not be given for the designation of an employee, or the name assigned to, the class to which he belongs. What is needed to be asked is as to what are the primary duties he performs. For the said purpose, it is necessary to prove that there were some persons working under him whose work is required to be supervised. Being in charge of the Section alone and that too it being a small one and relating to quality control would not answer the test. 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. 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.” 10. There are some exception of ‘Workman’ as defined under Section 2 (z). Exception (iv) is that being employed in a supervisory capacity, draws wages exceeding five thousand 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. Under Section 2 (s) of Industrial Disputes Act, 1947, limit of wages is Rs. 10000/- per mensem. Appointment letter dated 22.1.2013 provides for Rs. 1,02,000/- annually which comes to less that Rs. 10000/- per mensem. Industrial Tribunal found that although Rakesh Singh (EW-1) in his statement has stated that respondent-3 was appointed as ‘Supervisor’ on wage of Rs. 11,500/- per month. He was holding supervisory powers such as he was incharge of plumbering work and other employees has to work under his direction and control. He was authorized to sanction leave to his the staff working under him and terminate his services. But no documentary evidence has been adduced in this respect. In the written statement, the petitioner has stated that respondent-3 was appointed as ‘Supervisor (civil)’ on 21.4.2011, in maintenance department. According to respondent-3, his work was of maintenance and repair, which was manual work and was done by himself. Industrial Tribunal, after considering the facts and evidence of the parties held that work of respondent-3 was not of supervisory in nature. He did not have administrative or managerial powers. Law laid down by Constitution Bench in H.R. Adyanthaya’s case (supra), has no application in present case. 11. Industrial Tribunal, after considering the facts and evidence of the parties held that work of respondent-3 was not of supervisory in nature. He did not have administrative or managerial powers. Law laid down by Constitution Bench in H.R. Adyanthaya’s case (supra), has no application in present case. 11. Rule 12 (9) of U.P. Industrial Disputes Rules, 1957 provides as follows : “Rule 12 (9)- If the affidavit accompanying the written statement of the Union or the workman is not rebutted by the employers, the Labour Court or the Tribunal, the Presiding Officer concerned shall presume the contents of the affidavit to be true and make an award accepting the facts stated in the written statement.” Under the aforesaid Rules, Labour Court is authorized to base its finding upon the affidavit of the workman, if it remained un-rebutted. This Court in exercise of writ jurisdiction cannot set aside findings of fact of Labour Court as held by Apex Court in Bhuvnesh Kumar Dwivedi v. Hindalco Industries Ltd., (2014) 11 SCC 85 . 12. Supreme Court in Krishna Bhagya Jala Nigam Ltd. v. Mohammed Rafi, 2009 (11) SCC 522 , has held that the burden of proof is upon the workman to prove that he was a ‘workman’ and completed 240 days service in a calendar year. Supreme Court in Bank of Baroda v. Ghemarbhai Harjibhai Rabari, (2005) 10 SCC 792 , held that there is no doubt in law that the burden of proof that a claimant was in the employment of a management, primarily lies on the workman who claims to be a workman, the degree of such proof so required, would vary from case to case. In the instant case, the workman has established the fact which, of course, has not been denied by the Bank, that he did work as a driver of the car belonging to the Bank during the relevant period which comes to more than 240 days of work. He has produced 3 vouchers which showed that he had been paid certain sums of money towards his wages and the said amount has been debited to the account of the Bank. As against this, as found by the fora below, no evidence whatsoever has been adduced by the Bank to rebut even this piece of evidence produced by the workman. As against this, as found by the fora below, no evidence whatsoever has been adduced by the Bank to rebut even this piece of evidence produced by the workman. It remained contented by filing a written statement wherein it denied the claim of the workman and took up a plea that the employment of such drivers was under a scheme by which they are, in reality, the employee of the executive concerned and not that of the Bank; none was examined to prove the scheme. No evidence was led to establish that the vouchers produced by the workman were either not genuine or did not pertain to the wages paid to the workman. No explanation by way of evidence was produced to show for what purpose the workman’s signatures were taken in the register maintained by the Bank. In Kanpur Electricity Supply Co. Ltd. v. Shamim Mirza, (2009) 1 SCC 20 , held that it is trite that the burden to prove that a claimant was in the employment of a particular management, primarily lies on the person who claims to be so but the degree of proof, so required, varies from case to case. It is neither feasible nor advisable to lay down an abstract rule to determine the employer-employee relationship. It is essentially a question of fact to be determined by having regard to the cumulative effect of the entire material placed before the adjudicatory forum by the claimant and the management. 13. So far as award of back-wages is concerned Supreme Court in Haryana Roadways v. Rudhan Singh, (2005) 5 SCC 591 , has held that there is no rule of thumb that in every case where the Industrial Tribunal gives a finding that the termination of service was in violation of Section 25-F of the Act, entire back wages should be awarded. A host of factors like the manner and method of selection and appointment i.e. whether after proper advertisement of the vacancy or inviting applications from the employment exchange, nature of appointment, namely, whether ad hoc, short term, daily wage, temporary or permanent in character, any special qualification required for the job and the like should be weighed and balanced in taking a decision regarding award of back wages. One of the important factors, which has to be taken into consideration, is the length of service, which the workman had rendered with the employer. One of the important factors, which has to be taken into consideration, is the length of service, which the workman had rendered with the employer. If the workman has rendered a considerable period of service and his services are wrongfully terminated, he may be awarded full or partial back wages keeping in view the fact that at his age and the qualification possessed by him he may not be in a position to get another employment. However, where the total length of service rendered by a workman is very small, the award of back wages for the complete period i.e. from the date of termination till the date of the award, which our experience shows is often quite large, would be wholly inappropriate. Another important factor, which requires to be taken into consideration is the nature of employment. A regular service of permanent character cannot be compared to short or intermittent daily-wage employment though it may be for 240 days in a calendar year. In Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya, (2013) 10 SCC 324 , held that very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money. With the passing of an order which has the effect of severing the employer-employee relationship, the latter’s source of income gets dried up. Not only the employee concerned, but his entire family suffers grave adversities. They are deprived of the source of sustenance. The children are deprived of nutritious food and all opportunities of education and advancement in life. At times, the family has to borrow from the relatives and other acquaintance to avoid starvation. These sufferings continue till the competent adjudicatory forum decides on the legality of the action taken by the employer. The reinstatement of such an employee, which is preceded by a finding of the competent judicial/quasi-judicial body or Court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim full back wages. The reinstatement of such an employee, which is preceded by a finding of the competent judicial/quasi-judicial body or Court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim full back wages. If the employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him/her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments. The denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the employee concerned and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments.” In State of U.P. v. Charan Singh, (2015) 8 SCC 150 , held that in view of the cases referred to supra, there was absolutely no justification on the part of the Industrial Tribunal to deny back wages to the respondent even when it is found that the order of termination is void ab initio in law for non-compliance with the mandatory provisions under Section 6-N of the Act. Keeping in view the fact that the period of termination was in the year 1975 and the matter has been unnecessarily litigated by the employer by contesting the matter before the Industrial Tribunal as well as the High Court and this Court for more than 40 years, and further, even after the award/order of reinstatement was passed by the Industrial Tribunal directing the employer to give him the post equivalent to the post of Tubewell Operator, the same has been denied to him by offering the said post which is not equivalent to the post of Tubewell Operator and thereby, attributing the fault on the respondent for non-reporting to the post offered to him, which is once again unjustified on the part of the employer. Thus, the principle of “no work no pay” as observed by this Court in a catena of cases does not have any significance to the fact situation of the present case as the termination of the services of the workman from the post of Tubewell Operator is erroneous in law in the first place, as held by us in view of the abovestated reasons. 14. 14. In the present case, respondent-3 has pleaded and proved that after 1.11.2015, he was throughout unemployed. The petitioner could not adduce any evidence to prove that he was gainfully employed anywhere during this period. In view of judgments of Supreme Court burden of proof is on the employer to plead and prove that the workman was gainfully employed anywhere after termination of his services. In additional to it counsel for respondent-3 relied upon judgments of Supreme Court on various issues viz. State Bank of India v. N.Sundra Momey, AIR 1976 SC 197 and L.Robert D’Souza v. The Executive Engineer, Southern Railway and another on Section 6N of the Act; D.K. Yadav v. M/s. J.M.A. Industries Ltd., 1993 SCC (3) 259 on retrenchment; Raj Kumar Dixit v. M/s Vijay Kumar Gauri Shanker, Kanpur Nagar, 2015 (146) FLR 158, Syed Yakoob v. K.S. Radhkrishnan and others, 1964 AIR (SC) 477 and K.V.S. Ram v. Bangalore Metropolitan Transport Corporation, 2015 (144) FLR 994 on back wages; The Bharat Bank Ltd. v. The Employees of the Bharat Bank Ltd., Delhi and the Bharat Bank Employees Union, Delhi, AIR (37) 1980 SC 188 on issue of discretion of the Tribunal cannot be interfered. On the issue of workman she relied upon the judgments of Supreme Court in Anand Bazar Patrika Private Limited v. Workman, 1969 (18) FLR 186, Ved Prakash Gupta v. Delton Cale india (P) Ltd., 1984 AIR (SC) 914, Arkal Govind Raj Rao v. Ciba Geigy of India Ltd., Bombay, 1986(52) FLR 19, S.K. Verma v. Mahesh Chandra, 1983 (47) FLR 313, wherein it has been consistently held that the name of the post is not material but it is material that what sort of duties he has been assigned to perform. As in the present case although the nomenclature of respondent was Supervisor but his duties and functions were in the category of workman. 15. In view of the aforesaid discussions, the writ petition has no merit and is dismissed.