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2004 Supreme(Guj) 251
Gujarat High Court
Judgename :H.K.RATHOD
GUJARAT INDUSTRIAL CO-OP BANK LTD - Appellant
Versus
D G JOBANPUTRA - Respondent
S.C.A.621 of 1992
Decided On : 04/09/2004
Headnote:
Industrial Disputes Act, 1947 - Section 2[s] - Learned senior advocate appearing on behalf of the petitioner and learned advocate for the respondent workman - In the present petition the petitioner bank has challenged the award passed by the labour court in Reference whereby the labour court has set side the order of termination and directed the petitioner to pay benefits for the period from to the date of retirement and other benefits also according to the standing orders that are required to be paid by the petitioner to the respondent workman - respondent was working as the Branch Manager at the relevant time in the petitioner bank in the Branch Service of the respondent was terminated on the basis of the misconduct by order dated and that order was challenged before the labour court - Learned advocate has contended that before passing of the termination order, regular departmental inquiry was held was served and reasonable opportunity was given and thereafter, termination order has been passed. He also raised contention that Branch Manager is not covered by the definition under Section of the Industrial Disputes Act as the workman and therefore - Labour court has no jurisdiction to examine the legality and validity of the termination order which came to be passed against the respondent in the capacity of the Branch Manager - contention of the petitioner is that and applying the said test to the facts of the present case that on some day the respondent might have done some clerical work would not bring him within the definition of and that does not mean that the workman was not acting as the Branch Manager and therefore, his contention is that the court has committed an error in deciding this question and thereafter, considering the merits of the matter - Held, Appellant that he can yet be assigned the status of a without doing violence to the language of and the very purpose and object apart even judging from the nature of powers and the manner of its exercise by an Inspector appointed under the Act - Appellant cannot be considered to be engaged in doing any manual unskilled skilled technical operational clerical or supervisory work and the mere fact that in the course of performing his duties he had to also maintain incidentally records to evidence the duties preformed by him day-to-day cannot result in the conversion of the post into anyone of those nature noticed above without which as held by a Constitution Bench of this Court in the decision - Appellant cannot fall within the definition - Powers of Inspector and duties and obligations cast upon him as such are identical and akin to law enforcing agency or authority and also on par with a prosecuting agency in the public law field - Court also in case reported in has held that determination correct test is to look into nature of duties required to be performed by person holding particular post and considering the facts and circumstances of the case and while considering the definition of workman under Section held that Accounts Officer working under the Electricity Board drawing salary exceeding duty prescribed for said post is of supervisory character and therefore held that he cannot be said to be a workman - Court and the Division Bench of this Court in the case on hand - Court is not inclined to consider the merits of the matter and without entering into merits and the legality of the inquiry and punishment that looking to the evidence on record the respondent is not covered within the definition of the workman provided under Section Act and this ground is suffice to set aside the award in question - It is clarified that this Court has not entered into the merits and has not examined the legality and validity of the other contentions raised in the petition and therefore it will be open to the respondent to resort to the other remedy for redressal of his grievance before the appropriate forum in accordance with law - Petition succeeds and the same is allowed.
( 1 ) HEARD learned senior advocate Mr. A. H. Mehta appearing on behalf of the petitioner and learned advocate Mr. Tushar Mehta for the respondent workman. In the present petition, the petitioner bank has challenged the award passed by the labour court, Rajkot in Reference No. 1001 / 1983 whereby the labour court has set side the order of termination and directed the petitioner to pay 30 % benefits for the period from 24th June, 1983 to the date of retirement 31st October, 1991 and other benefits also according to the standing orders that are required to be paid by the petitioner to the respondent workman.
( 2 ) LEARNED advocate Mr. A. H. Mehta submitted that the respondent was working as the Branch Manager at the relevant time in the petitioner bank in the Branch at Bhavnagar. Service of the respondent was terminated on the basis of the misconduct by order dated 24th June, 1983 and that order was challenged before the labour court. Learned advocate Mr. Mehta has contended that before passing of the termination order, regular departmental inquiry was held, chargesheet was served and reasonable opportunity was given and thereafter, termination order has been passed. He also raised contention that Branch Manager is not covered by the definition under Section 2[s] of the Industrial Disputes Act, 1947 as the workman and therefore, the labour court has no jurisdiction to examine the legality and validity of the termination order which came to be passed against the respondent in the capacity of the Branch Manager. The further contention raised by the learned advocate Mr. Mehta that the respondent being the Branch Manager, was required to perform the work of supervisory nature as well as managerial and administrative in nature receiving salary more than Rs. 1600. 00 per month from the Bank. Therefore, learned advocate Mr. Mehta has relied upon two decisions in case of B. S. O. S. and D. CO V. MANAGEMENT STAFF ASSOCIATION reported in AIR 1971 SC 922 and MANAGEMENT OF M/s MAY AND BAKER [india] LTD V. THEIR WORKMEN [ AIR 1967 SC 678 ]. The contention of the petitioner is that "test of dominant to main work" and applying the said test to the facts of the present case that on some day the respondent might have done some clerical work, would not bring him within the definition of "workman" and that does not mean that the workman was not acting as the Branch Manager and therefore, his contention is that the labour court has committed an error in deciding this question and thereafter, considering the merits of the matter.
( 3 ) LEARNED advocate Mr. Tushar Mehta for the respondent has submitted that the labour court has rightly examined the issue of the workman and rightly come to the conclusion. He also submitted that the labour court has rightly considered the entire duties and functions of the Branch Manager, wherein the most of the work carried out by the Branch Manager, based and dependent after receiving the instruction from the higher officers and therefore, the respondent was not having full authority and power to take independent decision in respect of the branch wherein he was working. Therefore, he submitted that no error has been committed by the labour court while passing the award impugned in the present petition and the same deserves to be dismissed.
( 4 ) I have considered submissions made by the learned advocates on behalf of both the parties and also perused the award impugned in this petition. The labour court has examined the main issue in para-7 of the award. The labour court has considered the definition workman under Section 2[s] of the Industrial Dispute Act, 1947. The labour court has also considered certain decisions relied upon by the both the parties and also oral evidence led by the parties before the labour court. The labour court has also examined the issue, whether the respondent is workman within the meaning of Section 2[s] of the I. D. Act which is at page. 28 of the record. The labour court
