IN THE HIGH COURT AT CALCUTTA Constitutional Writ Jurisdiction APPELLATE SIDE Present: The Hon’ble Justice Shampa Dutt (Paul) WPA 11965 of 2026 With CAN 1 of 2026 Allcargo Logistics Ltd. Vs Smt. Pinki Kahar & Anr. For the Petitioner : Mr. Soumya Majumdar, Sr. Adv. Ms. Pooja Chakraborty, Mr. Prithwish Roy Chowdhury, Mr. Aritra Deb. For the Respondent No.1 : Mr. Amal Kanti Das, Mr. Debayan Sinha, Ms. Anyasha Das. Judgment reserved on : 25.08.2026 Judgment delivered on : 29.09.2026 Shampa Dutt (Paul), J.: 1. The writ application has been preferred challenging the award dated March 19, 2026 passed by the Learned Eighth Industrial Tribunal, West Bengal in Case No. VIII-05/2019. 2. Mr. Majumder, learned senior counsel has placed the judgment of this Court dated 09.09.2025 passed in WPA 16237 of 2025 wherein this 2 Court on considering the earlier award of the same tribunal more specifically the same Presiding Officer had set aside an award dated 12.12.2024 in Case No. VIII-05/2019 and the matter was sent back on remand for the Tribunal to hear the same afresh. 3. Vide the order dated 12.12.2024, the tribunal specifically had held as follows:- "Since the management has lost its confidence, the Tribunal is of the view that it is not advisable to order reinstatement of the applicant workman and the only course left is to assess the compensation that has to be paid to the applicant workman. As the termination was effected on 12.01.2018, the applicant workman is entitled to get back- wages for the period from the date of termination i.e. 12.01.2018 till the date of award i.e. 12.12.2024. The Tribunal is also of the view that the aforesaid back- wages is inadequate and instead of reinstatement proper compensation would be justified and the said compensation must be something more than the back-wages as she is entitled till the date of award. Considering the residue period of service the Tribunal is of the opinion that the adequate compensation should be given to the applicant workman. Accordingly, the management is further directed to pay the lump-sum of amount of Rs. 20 Lakhs in addition to the back-wages for the period from 12.01.2018 till the 3 date of award i.e. 12.12.2024 to the applicant workman." 4. The said Tribunal and the same Presiding Officer has now disposed of the case on remand, vide the impugned award and has held that the respondent no. 1 is a "workman" and while deciding the said case, has now passed an award/order as to the relief prayed for as follows:- "The termination of her service by the management of M/s. Gati Kintesu Express Pvt. Ltd. now known as/ presently known as M/s. Gati Express and Supply Chain Pvt. Ltd w.e.f. 11.01.2018 is illegal, unjustified and void. The management is directed to reinstate Smt. Pinki Kahar in service forthwith with continuity of service, the workman shall be entitled to full back wages from the date of termination till the date of reinstatement and shall also be entitled to all consequential benefits. The reference is thus disposed of in favour of the workman." 5. Mr. Majumder argues that the said relief granted to the private respondent no. 1 on deciding the reference in her favour, is contradictory to the earlier award passed by the same Presiding Officer, wherein the tribunal had clearly formed an opinion that "reinstatement was not advisable", on the grounds therein, that the management had lost confidence in the employee. 6. It is the contention of Mr. Majumder, that the learned Tribunal, while deciding the issue of the respondent no. 1 being a "workman" has given 4 his findings on certain facts which were neither part of the pleadings nor part of the evidence on record, which was directed by this Court for the Tribunal to consider afresh. 7. The petitioner’s case is that pursuant to a Composite Scheme of Arrangement approved by the Learned National Company Law Tribunal, Mumbai Bench, vide order dated 10.10.2025 in CP(CAA)/80(MB)/2025 read with C.A. (CAA)/235(MB)/2024, entities including Gati Express & Supply Chain Private Limited (formerly Gati Kintetsu Express Pvt. Ltd.) and Allcargo Gati Limited merged into Allcargo Logistics Limited, whereby all rights, interests, obligations, assets and liabilities of erstwhile Gati Express now vest in the Petitioner as successor-in- interest. 8. Respondent No. 1, Smt. Pinki Kahar, was initially engaged as a Graduate Trainee by a Gati Group entity, M/s. Gati Learning School, under Letter of Intimation dated 15.11.2007 and Offer of Engagement dated 21.11.2007. 9. After successful completion of training, Respondent No. I was appointed on probation for six months as Associate-Service, Level A-II, with retrospective effect from 02.06.2008, at a gross salary of Rs. 7,501/- per month, vide Appointment Letter dated 19.06.2008, which she accepted without demur. 10. She was confirmed in service with effect from 01.12.2008 vide Confirmation Letter dated 10.12.2008. 11. Respondent No. 1 thereafter received successive promotions, progressively moving from the associate category to the executive 5 cadre: assigned to Level A-I by letter dated 10.10.2011, promoted to Level E-II (Executive) by letter dated 01.01.2013, and ultimately promoted to Level E-I as Senior Executive by letter dated 16.08.2016 (Annexures P-5, P-6 and P-7 at pages 145-149). By such promotion, the Respondent no. 1 ceased to be a "workman" within the meaning of the Industrial Disputes Act, 1947. 12. From 11.12.2017 onwards, Respondent No. 1 was posted and working as 1st Shift In-Charge/Shift Leader at Warehouse No. 6, Sarkarpool Gopalpur, Budge Budge Road, Kolkata-700143, drawing a salary of Rs. 30,322/- per month (CTC), amounting to Rs. 3,63,871/- per annum, as evidenced by pay slips bearing Employee Level Code E-I. Such pay and benefits were much superior to the workman category of employees of the organization. 13. While holding the position of 1st Shift In-Charge / Shift Leader, Respondent No. I used to perform predominantly supervisory functions. 14. On 10.01.2018, a show-cause notice was issued to Respondent No. 1 for not following company-laid-down policies, resulting in negligent and casual handling of customer consignments and causing huge loss to the Company, specifically the loss of its biggest client, Apple India, due to double-stacking of high-value electronic items in an open vehicle despite specific instructions for single stacking only. 15. On 11.01.2018, Respondent No. 1 submitted her reply to the show- cause notice admitting that she had engaged one of her subordinate staff to load the shipment, thereby conceding both the charge and the 6 fact that subordinate staff were working under her supervision qua a supervisor. 16. Finding the reply unsatisfactory and in view of the substantial financial loss and reputational damage, the Petitioner (then Gati Express) terminated the services of Respondent No. 1 vide termination letter dated 11.01.2018. 17. By an order of reference made by the State Government, the said dispute was referred for adjudication to the Learned 8th Industrial Tribunal. 18. In Statement of Case before the Learned Tribunal, Respondent No. 1 stated about the nature of his duties and remuneration. 19. Respondent no.1 in her cross-examination admitted as follows:- a. "I got four promotions during 10 years of my service. I was Senior Executive in the year 2016." b. "Arindam Das was HR Coordinator below my rank, but as I was not a management staff, so he issued the show cause letter. 20. In her Affidavit of Evidence-in-Chief sworn on 03.10.2024, OPW-1 Miss Trisha Singha Roy stated that the post of Senior Executive-I (E-I) held by Respondent No. I was "next to Managerial level" and that Respondent No. 1 was receiving an annual salary of Rs. 3,63,871/. 21. In the legal notice issued on behalf of Respondent No. 1 by her Advocate Smt. Madhumita Datta, it was categorically admitted that Respondent No. 1, being Shift In-Charge-1, was holding a higher post than HR Coordinator East, Arindam Das, and it was contended that he had no power to issue show-cause against his superior in rank, therefore the 7 Respondent No. 1 has admitted that she is in senior to a person who is authorized to issue show cause notices by the Petitioner. 22. The first writ petition, being W.P.A. 16237 of 2025, was allowed by setting aside the First Award and directing the Learned Tribunal to decide, as a preliminary issue, whether Respondent No. 1 is a workman under Section 2(s) of the ID Act or not. 23. In the award on remand dated 19.3.2026, the Learned Tribunal has directed reinstatement of the Respondent No. 1 in service with full back wages. The same Presiding Officer who passed the first award has also passed the 2nd award. On remand, the aspect of "loss of confidence", as mentioned in the first award, has been substituted by "reinstatement". 24. The principal basis on which the Learned Tribunal passed the award is that in spite of promotion, other terms and conditions remained unchanged. Furthermore, apropos the nature of duties performed by the Respondent No. 1, the Learned Tribunal has relied upon certain nature of duties allegedly claimed to have been performed by Respondent No. 1, which do not form part of the pleading of the Respondent No. 1. 25. The Learned Tribunal has answered the jurisdictional issue by holding that the nature of work of the Respondent No. 1 was Operational & Clerical. 26. The petitioner has relied upon the following judgments:- a) Lenin Kumar Ray Vs. Express Publications (Madurai) Ltd., Civil Appeal Nos. 11709-11710 of 2024. 8 b) Burmah Shell Oil Storage and Distributing Co. of India Ltd. Vs. Burmah Shell Management Staff Association, AIR 1971 SC 922. c) Union Carbide India Ltd. Vs. Ramesh Kumla, 1999 (2) Mh LJ 63. d) Vimal Kumar Jain Vs. Labour Court, Kanpur, 1987 Supp SCC 40. e) Air India Cabin Crew Assn. Vs. Union of India, (2012) 1 SCC 619. 27. The petitioner thus prays for setting aside of the said award. 28. The respondent no.1 has filed affidavit-in-opposition along with written notes and has argued that on remand, the Learned Tribunal by the award dated 19.03.2026 has been pleased to clarify and/or elucidate the point as to why the respondent no. 1 had been held as a workmen by deciding the preliminary issue raised by the petitioner/employee and also held that, 'Once Smt. Pinki Kahar is held to be a workman, her termination amounts to retrenchment. Admittedly no notice pay, no retrenchment compensation, no compliance with Section 25F of the ID Act. 1947 have been made, hence the termination dated 11.01.2018 is illegal, void ab initio and unsustainable in law. 29. It is submitted that as the Learned Tribunal has taken one of the two possible views as her reinstatement in service, the Hon'ble High Court as an Appellate Court should not light heartedly interfere with the exercise of discretion by the Learned Tribunal. If the view taken by the Learned Tribunal appears to be perverse not a possible view and 9 exceeding jurisdiction only in that case, this Hon'ble Court has occasion to interfere. 30. The petitioner herein, is under obligation to opt and accept the respondent no.1's remedy either of her reinstatement together with all the consecutive benefits in service or in the alternative payment of the compensation as awarded. Since, the finding of the Learned Tribunal regarding her status as workman has not been disputed in the writ petition, either of the alternative reliefs of the respondent no. 1 cannot be ignored or avoided. If the petitioner is not happy with the order of her reinstatement in service, it may opt the second alternative of payment of the compensation. 31. On hearing the learned counsels for the parties, perusal of the materials on record and the impugned award dated 19.03.2026, it appears that the tribunal’s decision (on remand) on the limited issue as to whether the employee is a “workman” or not decided as follows:- “………In the instant case it is apparent that Smt. Pinki Kahar has delineated in details in her pleadings and evidence. Moreover the documentary evidence marked Exhibit-2, Exhibit-3, Exhibit-4, Exhibit-5, Exhibit-6 and Exhibit-7 shows the Position of Smt. Pinki Kahar in the establishment and the terms and conditions of her employment remained unchanged till the date of termination of service. Moreover her service was regulated as per the Certified Standing Order of the Company which is only applicable to the workman as defined u/s 2(s) of the ID Act 1947. Considering the entire evidence both oral and documentary the Tribunal holds that Smt. Pinki Kahar falls within the definition of "workman" under Section 2(s) of the Industrial Disputes Act, 1947.” 10 32. In Lenin Kumar Ray vs M/s. Express Publications (Madurai) Ltd., in Civil Appeal No. 11709 of 2024, decided on October 21, 2024, the Supreme Court held:- “10. At the outset, it is pertinent to point out that the Industrial Disputes Act, 1947, was enacted by the legislature to settle the industrial disputes. It was brought with the object to ensure social justice to both the employers and employees and advance the progress of industry by bringing about the existence of harmony and cordial relationship between the parties. 11. Section 2(s) of the I.D. Act defines “workman”, which is quoted below for ready reference: “2(s) "Workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory 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 the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950) or the Navy Act, 1957 (62 of 1957); 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 [ten thousand rupees]13 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.” As per the above provision, a person to be qualified as a “workman” has to do any work of manual, unskilled, skilled, technical, operational, clerical or supervisory in nature. But, the latter part of the section excludes four classes of employees including a person employed in a supervisory capacity drawing wages exceeding Rs.10,000/- after amendment (Rs.1,600/- before amendment) per month or exercises functions mainly of a managerial nature. In this legal backdrop, let us first examine, whether the employee falls within the definition of “workman”. 11 15. The law is well settled that the determinative factor for “workman” covered under section 2(s) of the I.D. Act, is the principal duties and functions performed by an employee in the establishment and not merely the designation of his post. Further, the onus of proving the nature of employment rests on the person claiming to be a “workman” within the definition of section 2(s) of the I.D. Act.” 33. In Lenin Kumar Ray vs M/s. Express Publications (Madurai) Ltd., (Supra), the Court held that the determinative factor for workman as:- “15. The law is well settled that the determinative factor for "workman" covered under section 2(s) of the I.D. Act, is the principal duties and functions performed by an employee in the establishment and not merely the designation of his post. Further, the onus of proving the nature of employment rests on the person claiming to be a "workman" within the definition of section 2(s) of the I.D. Act.” 34. Admittedly the employee herein was promoted to E-I Senior Executive. The tribunal relied upon exhibit 7 and observed that it was noted therein the promotion letter "all other terms and conditions of your employment remain the same". Here it means the terms and conditions include the terms and conditions flow from the Industrial Employment (Standing Orders) Act, 1946.” This is clearly only the interpretation of the tribunal who has put his own meaning by adding the subsequent portion, even though the same is missing in the letter, to bring the employee within the ambit of “workman”. 35. The company issued offer of appointment dated 19.06.2008 (Exhibit-3) to Smt. Pinki Kahar. The terms and conditions are embodied there in. By the said offer of appointment Smt. Pinki Kahar was appointed as Associate Service in Level A-II w.e.f. 02.06.2008. It has been stipulated therein, that the terms and conditions of service of Smt. Pinki Kahar will 12 be governed in all aspects under the Company's Industrial Employment (Standing Orders) Act, 1946 which is duly certified by the Certifying Officer of the concerned Government. 36. Exhibit 4 is the confirmation letter which was issued to the employee concerned wherein it was stated that all the terms and conditions of her employment remain unchanged. 37. It appears that though the letter of appointment dated 19.06.2008 (Exhibit 3) notes that the terms and conditions of service of the employee would be governed in all aspects under the Company’s Industrial Employment (Standing Orders) Act, 1946, the subsequent, promotion letters up to the post of senior executive only state “all other terms and conditions of your employment remain the same” and does not state anything about the applicability of the standing orders of the company. 38. But the learned tribunal has interpreted the same by putting in words, which are clearly missing being “Here it means the terms and conditions include the terms and conditions follow from the Industrial Employment (Standing Orders) Act, 1946”, and on the basis of this interpretation by adding his own words among others tried to bring the employee to be a “workman”. 39. The tribunals observations as to the nature of work carried out by the employee excludes important materials/evidence on record. 40. The tribunal has chosen to overlook the evidence that the employee had persons working under her and an officer authorized to issue a show cause was admitted to be her junior. 13 41. All these facts along with the employees designation as “Senior Executive” along with her nature of job and duties performed goes to prove that the employee was not a “workman” and as such is not eligible to raise an industrial dispute. 42. The findings of the tribunal in award dated March 19, 2026 passed by the Learned Eighth Industrial Tribunal, West Bengal in Case No. VIII- 05/2019, being not in accordance with law is set aside. 43. WPA 11965 of 2026 is allowed. 44. All connected application, if any, stands disposed of. 45. Interim order, if any, stands vacated. 46. Urgent Photostat certified copy of this judgment, if applied for, be supplied to the parties, expeditiously after complying with all necessary legal formalities. (Shampa Dutt (Paul), J.)