Senior marketing executive is not a workman.

This writ petition has been filed challenging the, order passed by the Principal Labour Court, Chennai dated 19.8.1996 in C.P.No.816 of 1994.

2. The case of the petitioner is that the first respondent was appointed as a senior marketing executive on probation, for 6 months on a basic pay of Rs.1200 and was later promoted as area coordinator (Marketing) from 7.4.1991 and later as assistant manager-marketing from 1.4.1992 on a basic pay of Rs.1650. On 20.9.1993, the first respondent tendered his resignation stating as follows:

"As I got a better offer, I hereby submit my resignation: from the post of assistant manager marketing. I am ready to serve the notice period of thirty days and kindly relieve me on 19th of October 1993 and settle my dues at the earliest.”

However, the first respondent did not attend office after 20.9.1993. Therefore, on the next day i.e., on 21.9.1993, the resignation of the first respondent was accepted and was relieved of his duty by letter dated 21.9.1993. Thereafter, in November 1994, the first respondent filed C.P.No.816 of 1994 under Sec.33(c)(2) of the Industrial Disputes Act, 1947 stating that he is a workman doing clerical work and that he has resigned and that his wages for August and September 1993 together with other benefits were not paid to him inspire of repeated personal-requests to the petitioner. Therefore, in the claim petition, a sum of Rs.33,833 was claimed, by the first respondent.

3. The writ petitioner/management filed a counter statement denying the claim of the first respondent. It was contended that since the first respondent was working as an assistant marketing manager, he falls under the mana­gerial category and therefore, he cannot be treated as a workman as contemplated under Sec.2(s) of the Industrial Disputes Act. Before the Labour Court, the writ petitioner has denied all the claims made in the claim petition, including the computation of wages, bonus, etc. No notice was served on the writ petitioner before the claim petition was filed. The monetary benefits claimed in the petition were disputed as being illegal, wrong and fabricated with an intention to make wrongful gain against the writ petitioner.

4. The Labour Court proceeded to adjudicate the case based on the oral and documentary evidence available before it, in particular, the evidence of the first respondent and the representative of the writ petitioner "and came to conclusion that the first respondent did not have the power to grant leave, operate the bank account, take disciplinary action or participate in board meetings and take policy decisions as per the evidence of the respondent in the claim petition. The Labour Court concluded that though the first respondent was appointed as a senior marketing executive, he did not work as a senior marketing, executive. The Labour Court rejected the writ petitioner's contention that the petition under Sec.33(c)(2) is not maintainable. The Labour Court, therefore, proceeded to determine the amount payable as claimed by the first respondent at Rs.4000 as wages for the month of August and Rs.3000 from 1st of September to 21st of September. The Labour Court also proceeded to grant other reliefs claimed in the petition towards earned leave, bonus, and conveyance allowance. In all, a sum of Rs.31,133 has been determined as due and payable to the first respondent and the petitioner was directed to deposit the said amount. As against the order, the writ petition has been filed.

5. The contention of the counsel for the petitioner is that the second respondent/Labour Court failed to take into consideration that it had no jurisdiction to entertain the petition un­der Sec.33(c)(2) of the Industrial Disputes Act without there being an adjudication of the dis­pute relating to the first respondent's claim. Ac­cording to the learned counsel, the petition filed under Sec.33(c)(2) is not maintainable in law and is without jurisdiction. The counsel for the petitioner would also cont