ORDER : Heard counsels for the parties. 2. The Present writ petition has been filed for quashing the order dated 12.12.2009 passed by Presiding Officer, Labour Court, Dhanbad in M.J. Case No. 15 of 2008, whereby the learned Labour Court had allowed the claim in favour of the workman. It had been ordered for payment of salary for the Month of February, 2007 to April, 2008 amounting to Rs. 1,54,661/-. 3. From pleadings and argument, it appears that the concerned workman had been appointed by the petitioner-employer vide appointment letter dated 20.12.2006. As per the terms of appointment, continuous absence was the ground for removal. It has been claimed by the petitioner-employer that on this ground the petitioner has been removed with effect 31.01.2007 and till date of removal, wages has been released. 4. On the other hand, respondent-workman has taken plea that he had worked till April, 2008 and as such he has moved under Section 33 (C)( 2) of the Industrial Disputes Act, 1947 for payment of due salary. 5. The claim has been disputed by the employer taking plea of termination of service w.e.f. 31.01.2007. The concerned labour court, after hearing the parties and considering the evidence has found that the concerned workman is entitled for salary for the aforesaid period. This order has been impugned in the present writ petition. 6. Assailing the above order, counsel for the petitioner-employer has taken three plea:- (i) First point has been taken that the respondent is not a workman under Section 2 (S) of the Industrial Disputes Act, 1947 and as such, he is not entitled to move application under Section 33 C (2) of the Industrial Disputes, Act, 1947. (ii) Second point has been taken that no dispute can be decided under Section 33(C) (2) of the Industrial Dispute, Act, 1947, Since the entitlement has been disputed on the ground of dismissal and as such, the concerned labour Court could not have granted benefit to the workmen. (iii) Third point has been taken that alleged report submitted by him under the certificate of posting is not proof of work and as such, it should have been presumed that the concerned workman has not worked for those period. 7. In support of first point paragraph-14 of the judgment reported in 1979 (3) SCC 280 in the case of Tarini Kamal Pandit & Ors. 7. In support of first point paragraph-14 of the judgment reported in 1979 (3) SCC 280 in the case of Tarini Kamal Pandit & Ors. vs. Prafulla Kumar Chatterjee (dead) by legal representatives and para 21, 22, and 23 of the judgment reported in (2011) 6 SCC 529 in the case of Shehla Burney (Dr.) & Anr. Vs. Syed Ali Mossa Raza (dead) by LRs & Ors. has been referred. 8. Paragraph-14 of the judgment in the case of Tarini Kamal Pandit (supra) is quoted hereinbelow:- 14. Before we conclude we will shortly refer to the question of law raised by Mr L.N. Sinha on behalf of the defendant. He submitted that as the title in the property vested in the defendant by confirmation of the court sale and later by a registered conveyance, the plaintiffs cannot seek relief on the unregistered agreement Ext. 4 as conveying any title to them. This point was not taken in any of the courts below but learned counsel submitted that because it is a pure question of law not involving any investigation of facts and as it goes to the root of the matter the court may permit the point to be taken. In support of his contention that a pure question of law in the circumstances can be taken for the first time in this Court he relied on the decisions of this Court in Yeswant Deorao Deshmukh v. Walchand Ramchand Kothari, Raja Sri Sailendra Narayan Bhanja Deo v. State of Orissa, Seth Badri Prasad v. Seth Nagarmal, State of Uttar Pradesh v. Anand Swarup and T.G. Appanda Mudaliar v. State of Madras. As the point raised is a pure question of law not involving any investigation of the facts, we permitted the learned counsel to raise the question. The plea of the learned counsel is that as the title has vested in him by virtue of the confirmation of the sale and the registered conveyance the plaintiff cannot rely on the unregistered agreement. In support of his contention the learned counsel relied on the decision of the Privy Council in G.H.C. Ariff v. Jadunath Majumdar Bahadur and Maritime Electric Co. Ltd. v. General Dairies Ltd. In G.H.C. Ariff v. Jadunath Majumdar Bahadur it was doubted whether the English equitable doctrine can be applied so as to modify the effect of an Indian statute. In support of his contention the learned counsel relied on the decision of the Privy Council in G.H.C. Ariff v. Jadunath Majumdar Bahadur and Maritime Electric Co. Ltd. v. General Dairies Ltd. In G.H.C. Ariff v. Jadunath Majumdar Bahadur it was doubted whether the English equitable doctrine can be applied so as to modify the effect of an Indian statute. The Court expressed itself thus: “...but that an English equitable doctrine affecting the provisions of an English statute relating to the right to sue upon a contract, should be applied by analogy to such a statute as the Transfer of Property Act and with such a result as to create without any writing an interest which the statute says can only be created by means of a registered instrument, appears to Their Lordships, in the absence of some binding authority to that effect, to be impossible.” The Court further observed: “Their Lordships do not understand the dicta to mean that equity will hold people bound as if a contract existed, where no contract was in fact made; nor do they understand them to mean that equity can override the provisions of a statute and (where no registered document exists and no registrable document can be procured) confer upon a person a right which the statute enacts shall be conferred only by a registered instrument.” In Maritime Electric Co. Ltd. v. General Dairies Ltd. the Court observed: “...where as here the statute imposes a duty of a positive kind, not avoidable by the performance of any formality, for the doing of the very act which the plaintiff seeks to do, it is not open to the defendant to set up an estoppel to prevent it.” The decisions are clear that the plaintiffs cannot succeed in displacing the title of the defendant on the basis of the unregistered agreement. But this will not help the defendant as the suit is based on the plea that the suit property and the premises were purchased in co-ownership i.e. on a claim that the plaintiffs were the real owners of the property. The claim of the plaintiff as a real owner is not based on the unregistered agreement alone. On the pleadings in the case the question of law raised cannot result in the suit being dismissed as not maintainable. 9. The claim of the plaintiff as a real owner is not based on the unregistered agreement alone. On the pleadings in the case the question of law raised cannot result in the suit being dismissed as not maintainable. 9. Para 21, 22, and 23 of the judgment in the case of Shehla Burney (Dr.)(Supra) are quoted hereinbelow: 21. The objection of the respondent that such point is taken only before this Court and not at an earlier stage of the proceeding cannot be countenanced since this point goes to the root of the matter and for consideration of this point no further investigation in the facts of the case is necessary. This point actually appears from the admitted records of the case and this point is based on the provisions of the Code of Civil Procedure. 22. In this connection principles which have been laid down by Lord Sumner in Surajmull Nargoremull v. Triton Insurance Co. Ltd. are very pertinent. The learned Law Lord summarised the proposition so lucidly that we should do nothing more than quote it: (IA pp. 128-29) “… No court can enforce as valid that which competent enactments have declared shall not be valid, nor is obedience to such an enactment a thing from which a court can be dispensed by the consent of the parties, or by a failure to plead or to argue the point at the outset:” 23. The aforesaid propositions have been quoted with approval by this Court in Badri Prasad v. Nagarmal, AIR at p. 562, para 7. Similar views have been expressed by this Court again in Tarini Kamal Pandit v. Prafulla Kumar Chatterjee. After considering several decisions, including the one rendered in Badri Prasad4 this Court held as follows: (Tarini Kamal Pandit case, SCC p. 288, para 14) “14. … As the point raised is a pure question of law not involving any investigation of the facts, we permitted the learned counsel to raise the question.” (AIR para 15 at p. 1172) 10. On the strength of above judgments, point has been raised that it is a pure question of law and it can be raised at any point of time. 11. The first point is that the respondent-workman is not covered under the definition of workman and it is a pure question of law, which can be raised at any point of time. 12. 11. The first point is that the respondent-workman is not covered under the definition of workman and it is a pure question of law, which can be raised at any point of time. 12. Supporting the second point regarding the scope of Section 33 C (2) of the Industrial Dispute Act, 1947, it has been argued that since employer has disputed the claim by taking plea of dismissal and as such the jurisdiction of the concerned Labour Court is ousted under Section 33C (2) of the Industrial Dispute Act, 1947. 13. So far as third point is concerned, the plea has been taken that no proper evidence has been brought on record to justify the finding of working for alleged period by the concerned workmen. 14. To Buttress the point number three, learned counsel for the petitioner-employer has relied upon the judgment passed in the case of State of Maharashtra Vs. Rashid B. Mulani. Relevant para-14 of the said judgment is quoted hereinunder:- 14. A certificate of posting obtained by a sender is not comparable to a receipt for sending a communication by registered post. When a letter is sent by registered post, a receipt with serial number is issued and a record is maintained by the Post Office. But when a mere certificate of posting is sought, no record is maintained by the Post Office either about the receipt of the letter or the certificate issued. The case with which such certificates can be procured by affixing ante-dated seal with the connivance of any employee of the Post Office is a matter of concern. The Department of posts may have to evolve some procedure whereby a record in regard to the issuance of certificates is regularly maintained showing a serial number, date, sender's name and addressee's name to avoid misuse. In the absence of such a record, a certificate of posting may be of very little assistance where the dispatch of such communications is disputed or denied as in this case. Be that as it may. 15. Countering the above plea taken by the petitioner-employer, counsel for the employee has placed reliance at paragraph-18 of the judgment rendered by the Apex Court reported in (2007) 7 SCC 171 in the case of C. Gupta Vs. Glaxo-Smithkline Pharmaceuticals Ltd. Para 18 of the said judgment is quoted hereinunder:- “18. Be that as it may. 15. Countering the above plea taken by the petitioner-employer, counsel for the employee has placed reliance at paragraph-18 of the judgment rendered by the Apex Court reported in (2007) 7 SCC 171 in the case of C. Gupta Vs. Glaxo-Smithkline Pharmaceuticals Ltd. Para 18 of the said judgment is quoted hereinunder:- “18. It is not in dispute that the nomenclature is really not of any consequence. Whether a particular employee comes within the definition of workman has to be decided factually. In fact, it has been found as a matter with reference to various factual aspects that the duties undertaken by the appellant overwhelmingly fell in the managerial cadre. So far as the nature of work is concerned, the Division Bench of the High Court took note of several aspects as reflected in para 29 of the judgment. The same reads as follows: “In the evidence adduced on behalf of the Company, its Director, Shri Rustam Padam Bharucha deposed that the duties of the appellant were to represent the Company in conciliation proceedings, before government authorities under the Factories Act, the ESI Act, the PF Act, the Contract Labour (Regulation and Abolition) Act, to represent the management as an enquiry officer or as the management’s representative in domestic enquiries, to guide and advise the management’s representative in domestic enquiries, to advise him about the line of cross-examination in such enquiries, advise about the quantum of punishment to be inflicted in disciplinary proceedings. To give advise on queries raised by the management pertaining to the interpretation of statutes or settlement with the unions or regarding enquiries raised by government authorities, to brief witnesses, to prepare drafts for the perusal of counsel, to brief counsel on facts as well as law, to be present in court when the arguments were taking place in judicial matters related to the Company, to keep in touch with the latest case laws and amendments to the labour legislations, to ensure that the management fulfilled its obligations under the labour legislations and to advise the management on provisions of settlement.” 16. On the strength of the above judgment, argument has been advanced that whether a person is workman or not is a pure mixed question of fact and it can be decided only on the factual matrix and not otherwise. 17. On the strength of the above judgment, argument has been advanced that whether a person is workman or not is a pure mixed question of fact and it can be decided only on the factual matrix and not otherwise. 17. Learned counsel for the workman has also relied upon a judgment reported in (1994) 3 SCC 510 in the case of S.K. Maini Vs. M/s Carona Sahu Co. Ltd. & Ors. Relevant para-9 of this judgment is quoted hereinunder:- “9. After giving our careful consideration to the facts and circumstances of the case and the submissions made by the learned counsel for the parties, it appears to us that whether or not an employee is a workman under Section 2(s) of the Industrial Disputes Act is required to be determined with reference to his principal nature of duties and functions. Such question is required to be determined with reference to the facts and circumstances of the case and materials on record and it is not possible to lay down any strait-jacket formula which can decide the dispute as to the real nature of duties and functions being performed by an employee in all cases. When an employee is employed to do the types of work enumerated in the definition of workman under Section 2(s), there is hardly any difficulty in treating him as a workman under the appropriate classification but in the complexity of industrial or commercial organisations quite a large number of employees are often required to do more than one kind of work. In such cases, it becomes necessary to determine under which classification the employee will fall for the purpose of deciding whether he comes within the definition of workman or goes out of it. In this connection, reference may be made to the decision of this Court in Burmah Shell Oil Storage and Distribution Co. of India Ltd. v. Burmah Shell Management Staff Assn. In All India Reserve Bank Employees’ Assn. v. Reserve Bank of India it has been held by this Court that the word ‘supervise’ and its derivatives are not words of precise import and must often be construed in the light of context, for unless controlled, they cover an easily simple oversight and direction as manual work coupled with the power of inspection and superintendence of the manual work of others. It has been rightly contended by both the learned counsel that the designation of an employee is not of much importance and what is important is the nature of duties being performed by the employee. The determinative factor is the main duties of the employee concerned and not some works incidentally done. In other words, what is, in substance, the work which employee does or what in substance he is employed to do. Viewed from this angle, if the employee is mainly doing supervisory work but incidentally or for a fraction of time also does some manual or clerical work, the employee should be held to be doing supervisory works. Conversely, if the main work is of manual, clerical or of technical nature, the mere fact that some supervisory or other work is also done by the employee incidentally or only a small fraction of working time is devoted to some supervisory works, the employee will come within the purview of ‘workman’ as defined in Section 2(s) of the Industrial Disputes Act.” 18. On the strength of above judgments, argument has been advanced that nomenclature or designation of post is not important rather the work assigned and the nature of duty are deciding factors and this can be ascertained only on the basis of evidence laid by the parties. 19. The plea has been taken that this point has not been taken either in the written statement or at the argument stage before the court below and as such, no issue has been framed and further the respondent-workman has got no opportunity to revert this point and as such, being mixed question of fact and law, it cannot be allowed to be raised it at this stage before the writ court under Article 226 of the Constitution of India. 20. Reliance has been placed upon the judgment reported in (1964) 3 SCR 140 in the case of Central Bank of India Ltd. Vs. P.S. Rajagopalan Etc. Relevant para-16 is quoted hereinunder:- “Let us then revert to the words used in S. 33C(2) in order to decide what would be its true scope and effect on a fair and reasonable construction. When sub-sec. (2) refers to any workman entitled to receive from the employer any benefit there specified, does it mean that he must be a workman whose right to receive the said benefit is not disputed by the employer? When sub-sec. (2) refers to any workman entitled to receive from the employer any benefit there specified, does it mean that he must be a workman whose right to receive the said benefit is not disputed by the employer? According to the appellant, the scope of sub-s. (2) is similar to that of sub-s. (1) and it is pointed out that just as under sub-s. (1) any disputed question about the workmen's right to receive the money due under an award cannot be adjudicated upon by the appropriate Government, so under sub-s. (2) if a dispute is raised about the workmen's right to receive the benefit in question, that cannot be determined by the Labour Court. The only point which the Labour Court can determine is one in relation to the computation of the benefit in terms of money. We are not impressed by this argument. In our opinion, on a fair and reasonable construction of sub-sec. (2) it is clear that if a workman's right to receive the benefit is disputed, that may have to be determined by the Labour Court. Before proceeding to compute the benefit in terms of money the Labour Court inevitably has to deal with the question as to whether the workman has a right to receive that benefit. If the said right is not disputed, nothing more needs to be done and the Labour Court can proceed to compute the value of the benefit in terms of money; but if the said right is disputed, the Labour Court must deal with that question and decide whether the workman has the right to receive the benefit as alleged by him and it is only if the Labour Court answers this point in favour of the workman that the next question of making the necessary computation can arise. It seems to us that the opening clause of sub sec. (2) does not admit of the construction for which the appellant contends unless we add some words in that clause. The Clause "Where any workman is entitled to receive from the employer any benefit'' does not mean "where such workman is admittedly, or admitted to be, entitled to receive such benefit''. The appellant's construction would necessarily introduce the addition of the words "admittedly, or admitted to be'' in that clause, and that clearly is not permissible. The Clause "Where any workman is entitled to receive from the employer any benefit'' does not mean "where such workman is admittedly, or admitted to be, entitled to receive such benefit''. The appellant's construction would necessarily introduce the addition of the words "admittedly, or admitted to be'' in that clause, and that clearly is not permissible. Besides, it seems to us that if the appellant's construction is accepted, it would necessarily mean that it would be at the option of the employer to allow the workman to avail himself of the remedy provided by sub-s. (2), because he has merely to raise an objection on the ground that the right claimed by the workman is not admitted to oust the jurisdiction of the Labour Court to entertain the workman's application. The claim under Section 33C(2) clearly postulates that the determination of the question about computing the benefit in terms of money may, in some cases, have to be preceded by an enquiry into the existence of the right and such an enquiry must be held to be incidental to the main determination which has been assigned to the Labour Court by sub-sec. (2). As Maxwell has observed "where an Act confers a jurisdiction, it impliedly also grants the powers of doing all such acts, or employing such means, as are essentially necessary to its execution*''. We must accordingly hold that S. 33C(2) takes within its purview cases of workmen who claimed that the benefit to which they are entitled should be computed in terms of money, even though the right to the benefit on which their claim is based is disputed by their employers. Incidentally, it may be relevant to add that it would be somewhat odd that under sub-s. (3), the Labour Court should have been authorised to delegate the work of computing the money value of the benefit to the Commissioner if the determination of the said question was the only task assigned to the Labour Court under sub-s. (2). On the other hand, sub-s. (3) becomes intelligible if it is held that what can be assigned to the Commissioner includes only a part of the assignment of the Labour Court under sub-s. (2).” 21. Referring the above judgment, submission has been made that it is not a case that every dispute is not to be decided under Section 32 (C) 2 of the Industrial Dispute Act, 1947. Referring the above judgment, submission has been made that it is not a case that every dispute is not to be decided under Section 32 (C) 2 of the Industrial Dispute Act, 1947. Existence of a bonafide dispute is sine qua non for ousting the jurisdiction. 22. So far as third point is regarding the sufficiency of evidence regarding the finding of working of respondent-workman is concerned, reliance has been placed upon the judgment reported in 1964 (5) SCR 64 in the case of Syed Yakoob Vs. K.S. Radhakrishnan & Ors. Relevant para-7 is quoted hereinunder:- 7. The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Art. 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals : these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Art. 226 to issue a writ of certiorari can be legitimately exercised (vide Hari Vishnu Kamath v. Ahmad Ishaque, 1955 (1) SCR 1104 : ((S) AIR 1955 SC 233 ): Nagendra Nath v. Commr. of Hills Division, 1958 SCR 1240 : ( AIR 1958 SC 398 ) and Kaushalya Devi v. Bachittar Singh. 23. On the strength of above judgment, argument has been advanced that sufficiency of evidence is not within the domain of the writ Court. Under supervisory jurisdiction, the court has to see only perversity of the finding. Perversity means if it is based upon no evidence. 24. Heard learned counsels for the parties. 25. It is admitted position that the petitioner has been appointed vide appointment letter dated 20.12.2006 and working since 31.01.2007, is not in dispute. As per the employer, he has been removed from the service w.e.f. 31.01.2007 but as per the workman he had worked till April, 2008. The Tribunal has recorded its finding that the alleged order of termination has never been communicated to the workman. Finding has also recorded by relying upon the evidence produced by the workman that the concerned workman has worked till April, 2008. 26. The Tribunal has recorded its finding that the alleged order of termination has never been communicated to the workman. Finding has also recorded by relying upon the evidence produced by the workman that the concerned workman has worked till April, 2008. 26. So far as the issue of workman is concerned, it is trite that it is a mixed question of fact and law. Designation or nomenclature of the post is not a deciding factor rather nature of duty assigned or performed by the employees is deciding factor. This is a pure question of fact to be pleaded and proved by the disputing parties. Further, the other party has to be given opportunity to revert the same. If this issue has not been taken at the preliminary stage, certainly the other party will not get an opportunity to revert the same and there will be no evidence laid by the parties for establishing the fact that “whether the concerned employee comes under the definition of workman or not ?” 27. In the present case, the employer has neither taken this plea in the written statement nor adduced any evidence to that effect. In absence of evidence or raising the dispute, no finding could have been recorded by the concerned Tribunal. Before this writ court, this issue cannot be raised as because it is a mixed question of fact and law and as such, first issue raised by the petitioner-employer must fail. 28. Second issue regarding the scope of Section 33 (C) (2) of the Industrial Dispute Act is concerned, law has been clarified that under this section Tribunal is supposed to convert the claim into money. Authorised Tribunal is authorised to calculate the claim in terms of money. Dispute between the parties cannot be resolved by the Tribunal under Section 33 (C) (2) of the Industrial Disputes Act, 1947, but existence of dispute has to be established. In the present case only dispute has been raised regarding the existence of order of dismissal. This basic fact has to be proved to convert the plea in the real dispute for ousting the jurisdiction of Tribunal under Section 33 (C) (2) of the Industrial Dispute Act, 1947. In the present case only dispute has been raised regarding the existence of order of dismissal. This basic fact has to be proved to convert the plea in the real dispute for ousting the jurisdiction of Tribunal under Section 33 (C) (2) of the Industrial Dispute Act, 1947. Since in the present case the employer has failed to prove the existence of order of dismissal or atleast communication of the same to the concerned employee and as such, dispute has not surfaced to oust the jurisdiction of Labour Court. 29. So far as quantum of salary is concerned and appointment of respondent-workman is concerned that has not been disputed. In view of above discussion, the second point raised by the petitioner-employer also stands negated. 30. Third point is regarding the sufficiency of the evidence or the evidentiary value of the certificate of posting made under the certificate of posting is concerned, the Apex Court has held in the judgment in the case of State of Maharashtra Vs. Rashid B. Mulani (supra) wherein it has been held that since no record is kept by the post office for posting made under the certificate of posting and as such it is of no much consequences. No much reliance can be placed upon the same, if any dispute is raised. But, it is not a case that it is not an admissible piece of evidence. 31. In absence of any other evidence, reliance has to be placed upon the material available on record, Indian Evidence Act is not applicable in the case of industrial dispute. Here, the decision is taken place on the basis of material available on record and not on the basis of evidence on record. Further in the present case, the factum of appointment is not in dispute. Finding has been recorded that the order of dismissal has not been communicated to the employee. In such condition, natural consequences are that the workman has continued to work and this fact has been supported by adducing evidence of reporting under the certificate of posting. In such scenario, finding recorded by the tribunal cannot be said to be without evidence. Sufficiency of evidence cannot to be looked in the supervisory jurisdiction. In view of above discussion, third point stands also negated. 32. Resultantly, this Court finds no merit in the present writ petition, accordingly the same is, hereby, dismissed.