The primary duties performed by an employee, as well as the terms of the appointment letter, govern the employment relationship. In cases of termination, the specific terms of the appointment letter dictate the requirements for conducting an enquiry.

Management of M/s Usha Martin Limited is aggrieved by order dated 11.01.2007 and award dated 10.03.2010 in Reference Case no. 05 of 1998.

2. The brief facts of the case are that the respondent was appointed as Assistant Manager, Security and Services on 09.04.1988 and he joined the petitionercompany on 15.07.1988. A letter of confirmation of service was issued on 27.11.1989 and the respondent was transferred from Jamshedpur to Ranchi on 08.10.1991. The respondent was promoted on the post of Deputy Manager, Security and Services with effect from 09.10.1991. Vide letter dated 29.10.1994 respondent's service was dispensed with in terms of Clause 7 of the appointment letter dated 09.04.1988. The respondent submitted representation dated 25.12.1994 for his reinstatement with full back wages. Since the dispute could not be resolved, the appropriate Government vide notification dated 13.06.1998 referred the dispute for adjudication to the Labour Court Jamshedpur. The Labour Court vide order dated 11.01.2007 held the respondent a workman under Section 2(s) of the Industrial Disputes Act and award was made on 10.03.2010 directing reinstatement of the respondent with 50% back wages from 29.10.1994.

3. Heard the learned counsel for the parties.

4. The learned counsel for the petitioner submits that the respondent's employment is governed by the appointment letter dated 09.04.1988 and his services were terminated in terms of Clause 7 of the appointment letter and therefore, it cannot be held that his termination was illegal. It is submitted that in view of overwhelming evidence produced by the petitioner-company, it is apparent that the respondent was working in a managerial capacity and thus, he is not covered under Section 2(s) of the Industrial Disputes Act. Per contra, the learned counsel for the respondent submits that during proceeding in Reference Case No. 05 of 1998 one witness produced by the Management admitted that before the workman was terminated from service he was not discharging his services satisfactorily and thus, termination order would attach stigma to the workman. It is further submitted that the respondent was not charged for any misconduct and without holding enquiry, he has been terminated from service. Order of termination was issued by one Mr. R.K. Sontholia, working as president (works) who was not competent to issue letter of termination.

5. I have carefully considered the rival contentions raised on behalf of the parties and perused the documents on record.

6. In Reference Case No. 05 of 1998, the preliminary issue, “whether the employee Sri Braj Bhushan Bansal is workman or not?” was framed. The respondent contended that though, he was holding post of Deputy Manager, Security Services, the nature of the work and responsibility assigned were not managerial or administrative. On behalf of the Management, it was contended that the nature of duty of the respondent included, (i) to distribute security work amongst the Security Guards (ii) to supervise and manage services rendered by the Security Guards and, (iii) to sanction leave and overtime wages to the Security Guards. Relying on the appointment letter dated 09.04.1988, it was contended that the workman was holding a managerial and administrative post. The respondent examined two witnesses and on behalf of the Management four witnesses were examined. The Labour Court has noticed that except MW-4, other three witnesses examined on behalf of the Management supported the case of the Management that the workman was performing supervisory, managerial and administrative work. Witnesses have stated that about 4050 Security Guards were working in the Management and he used to distribute work, forward their leave application, letter of disciplinary action, increment etc. The Labour Court took note of the cross-examination of MW 1 whereunder, he accepted that the respondent was not head of the Security Department and he has no power to issue charge-sheet and to award